Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject: (a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or them, arising out of or in connection with it acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. (b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants. (c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel. (d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. (e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. (g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof). (h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. (i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company. (j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent. (k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement. (l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts. (m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement. (n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof. (o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement. (p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 3 contracts
Samples: Warrant Agreement (Merrill Lynch & Co Inc), Warrant Agreement (Merrill Lynch & Co Inc), Warrant Agreement (Merrill Lynch & Co Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part holders of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCertificates.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 3 contracts
Samples: Warrant Agreement (Forman Petroleum Corp), Warrant Agreement (Forman Petroleum Corp), Warrant Agreement (Packaged Ice Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.02(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of Holders owners or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 3 contracts
Samples: Warrant Agreement (Morgan Stanley Group Inc /De/), Warrant Agreement (Morgan Stanley Group Inc /De/), Warrant Agreement (Morgan Stanley Group Inc /De/)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable attorneys’ fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, written notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(e) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Certificates (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the any Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.03 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(pk) In the event the The Warrant Agent believes may execute any ambiguity of the trusts or uncertainty exists powers hereunder or in perform any noticeduties hereunder either directly or by or through agents, instructionattorneys, directioncustodians or nominees appointed with due care, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in responsible for any way to misconduct or negligence on the Companypart of any agent, any Holders attorney, custodian or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentnominee so appointed.
Appears in 3 contracts
Samples: Warrant Agreement (Lehman Brothers Holdings Inc), Warrant Agreement (Lehman Brothers Holdings Inc), Warrant Agreement (Lehman Brothers Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithCertificate, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, herein or in the Global Warrant Certificate, Certificate otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its President, Chairman of the Board, Presidentofficer serving as Chief Financial Officer, a Treasurer, any Executive Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agentany Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 3 contracts
Samples: Warrant Agreement (Merrill Lynch & Co Inc), Warrant Agreement (Merrill Lynch & Co Inc), Warrant Agreement (Merrill Lynch & Co Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable lawlaw including, but not limited to, the Trust Indenture Act of 1939, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require and may conclusively rely on:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined upon by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates duly authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman the chairman or a co-chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurerboard, the Secretary chief executive officer, the president, the chief financial officer, any executive vice president or an Assistant Secretary any senior vice president of the Company and delivered to signing alone, or by any vice president signing together with the Warrant Agent.
(k) In secretary, any assistant secretary, the absence of bad faith on the part treasurer, or any assistant treasurer of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCompany.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman or a co-chairman of the board, the president, the chief executive officer, the chief financial officer, any executive vice president or any senior vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer, of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period); provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as the case may bepresident, the chief executive officer, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Entertainment Inc), Warrant Agreement (Entertainment Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(ai) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or gross negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence gross negligence, bad faith, willful misconduct or bad faith breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 13(b)(i) shall survive the termination of this Agreement.
(bii) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(ciii) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(div) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the .
(v) The Warrant Agent shall not be liable in any event hereunder only for specialits own gross negligence, punitive, indirect, incidental bad faith or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionwillful misconduct.
(evi) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of owners or Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(fvii) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(gviii) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Certificates (except its authentication countersignature thereof).
(hix) The recitals contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(ix) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in the Global any Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 19(a) hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Oracle Corp /De/), Warrant Agreement (Oracle Corp /De/)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(e) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Certificates (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the any Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.03 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(pk) In the event the The Warrant Agent believes may execute any ambiguity of the trusts or uncertainty exists powers hereunder or in perform any noticeduties hereunder either directly or by or through agents, instructionattorneys, directioncustodians or nominees appointed with due care, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in responsible for any way to misconduct or negligence on the Companypart of any agent, any Holders attorney, custodian or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentnominee so appointed.
Appears in 2 contracts
Samples: Warrant Agreement (Lehman Brothers Holdings Inc), Warrant Agreement (Lehman Brothers Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant holders shall be subject:
(a) The Warrant Agent shall be entitled to such compensation as the Company agrees promptly to pay and the Warrant Agent the compensation shall from time to be agreed upon with the Company time agree in writing for all services rendered by the Warrant Agent and to hereunder (including in any other agent capacity in which it acts). The Company shall reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or negligence, bad faith or willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of or liability in connection with the premisesexercise or performance of any of its powers or duties hereunder. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by, and whenever in the administration of this Agreement the Warrant Agent shall deem it desirable that a matter be proved or established prior to taking, offering or omitting any action hereunder, the Warrant Agent may rely upon, an Officers’ Certificate of the Company (unless other evidence in respect thereof be herein specifically prescribed); provided, however, that no additional certificate need be furnished by the Company pursuant to Section 8.02 if the Warrant Agent requests a certificate pursuant to this Section 7.02(d).
(e) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(ef) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepositary, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(fg) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(gh) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Warrants (except its authentication countersignature thereof).
(hi) The recitals contained herein and in the Global Warrant Certificate Warrants (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(ij) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the any Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(pl) In the event the The Warrant Agent believes may execute any ambiguity or uncertainty exists of the powers hereunder or in perform any noticeduties hereunder either directly or by or through agents, instructionattorneys, directioncustodians or nominees appointed with due care, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in responsible for any way to misconduct or negligence on the Companypart of any agent, any Holders attorney, custodian or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentnominee so appointed.
Appears in 2 contracts
Samples: Warrant Agreement (Swedish Export Credit Corp /Swed/), Warrant Agreement (Swedish Export Credit Corp /Swed/)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each successor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themsuccessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees (“Related Parties”), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers’ Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Boardchief executive officer, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound is hereby authorized and directed to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant accept written instructions with respect to the terms performance of this Agreement.
(p) In its duties hereunder from any one of the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunderchief executive officer, the Warrant Agentpresident, maythe treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its sole discretion, refrain from taking any actionduties, and shall be fully protected and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of matter arising in connection with the Warrant Agent.’s duties and obligations arising under this
Appears in 2 contracts
Samples: Warrant Agreement (Syntroleum Corp), Warrant Agreement (Syntroleum Corp)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to to, the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in any Warrant Certificate or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Paine Webber Group Inc), Warrant Agreement (Paine Webber Group Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each successor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themsuccessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Boardchief executive officer, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chief executive officer, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe chief executive officer, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Syntroleum Corp), Warrant Agreement (Syntroleum Corp)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(e) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.the
Appears in 2 contracts
Samples: Warrant Agreement (Salomon Smith Barney Holdings Inc), Warrant Agreement (Salomon Smith Barney Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-of- pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.02(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of Holders owners or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Interest Rate Warrant Agreement (J P Morgan Chase & Co), Currency Warrant Agreement (J P Morgan Chase & Co)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth herein upon and subject to the terms and conditions hereof and of the Global Warrant Certificates Warrants, including the following, to all of which the Company Corporation agrees and to all of which the rights hereunder of the Owners and Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses expenses, disbursements and advances (including counsel reasonable attorneys' fees and expensesexpenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company Corporation also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithWarrants, as well as including the reasonable costs and expenses of defending itself against any claim of or liability in connection with the premisesexercise or performance of any of its powers or duties hereunder. The obligations of the Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant CertificateWarrant, resolution, opinion, report, request, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement , provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the contraryWarrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such 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 accordance with such written opinion.
(d) The Warrant Agent shall not be liable bound to make any investigation into the facts or matters stated in any event for specialCorporation Order or Board Resolution, punitivebut the Warranx Xxxxx, indirectxx xxx xxxxxxxxon, incidental may make such further inquiry or consequential losses investigation into such facts or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionmatters as it may see fit.
(e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the owner Owner or Holder of, or acquire an any interest in, any Warrants or other obligations of the CompanyCorporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company Corporation and may act on, or as depositary, trustee or agent for, any committee or body of Owners or Holders of Warrants or other obligations of the Company Corporation as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate Warrants except as otherwise agreed with the Corporation, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrants or the Warrant Certificate Certificates (except its authentication the countersignature thereof).
(h) The recitals contained herein and in the Global Warrant Certificate Warrants (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Corporation, and the Warrant Agent assumes no responsibility for the correctness of the samethereof.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company Corporation of any of the Global Warrant Certificate authenticated Certificates countersigned by the Warrant Agent and delivered by it to the Company Corporation pursuant to this Agreement or for the application by the Company Corporation of any proceeds. .
(j) The Warrant Agent shall have no duty or responsibility in case of any default by the Company Corporation in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Warrants or in the case of the receipt of any written demand from a an Owner or Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoinglimitation, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 8.03, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant AgentCorporation.
(k) In acting under this Agreement and in connection with the absence of bad faith on the part of the Warrant AgentWarrants, the Warrant Agent may conclusively rely, is acting solely as to the truth agent of the statements Corporation and the correctness does not assume any obligation or relationship of agency or trust for or with any of the opinions expressed therein, upon any certificates Owners or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers Holders of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsWarrants.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (UBS Preferred Funding Trust VIII), Warrant Agreement (Ubs Preferred Funding Trust Iv)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company R&B Falcon agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company R&B Falcon agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing R&B Falcon for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company R&B Falcon also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company R&B Falcon and does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company R&B Falcon and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company R&B Falcon as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements ), all of the Company and the Warrant Agent assumes no responsibility for the correctness of the samewhich are made solely by R&B Falcon.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company R&B Falcon of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company R&B Falcon pursuant to this Agreement or for the application by R&B Falcon of the Company proceeds of any proceedsthe Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company R&B Falcon in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the CompanyR&B Falcon.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. R&B Falcon hereby authorizes its present and any successor Transfer Agent to comply with all such requests. R&B Falcon will supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (R&b Falcon Corp), Warrant Agreement (R&b Falcon Corp)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth herein upon and subject to the terms and conditions hereof and of the Global Warrant Certificates Warrants, including the following, to all of which the Company Corporation agrees and to all of which the rights hereunder of the Owners and Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses expenses, disbursements and advances (including counsel reasonable attorneys' fees and expensesexpenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company Corporation also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithWarrants, as well as including the reasonable costs and expenses of defending itself against any claim of or liability in connection with the premisesexercise or performance of any of its powers or duties hereunder. The obligations of the Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant CertificateWarrant, resolution, opinion, report, request, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement , provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the contraryWarrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such 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 accordance with such written opinion.
(d) The Warrant Agent shall not be liable bound to make any investigation into the facts or matters stated in any event for specialCorporation Order or Board Resolution, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of Agent, in its discretion, may make such loss further inquiry or damage and regardless of the form of actioninvestigation into such facts or matters as it may see fit.
(e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the owner Owner or Holder of, or acquire an any interest in, any Warrants or other obligations of the CompanyCorporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company Corporation and may act on, or as depositary, trustee or agent for, any committee or body of Owners or Holders of Warrants or holders of [Offered Debt Securities or] Warrant Debt Securities or other obligations of the Company Corporation as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate Warrants except as otherwise agreed with the Corporation, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrants or the Warrant Certificate Certificates (except its authentication the countersignature thereof).
(h) The recitals contained herein and in the Global Warrant Certificate Warrants (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Corporation, and the Warrant Agent assumes no responsibility for the correctness of the samethereof.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company Corporation of any of the Global Warrant Certificate authenticated Certificates countersigned by the Warrant Agent and delivered by it to the Company Corporation pursuant to this Agreement or for the application by the Company Corporation of any proceeds. .
(j) The Warrant Agent shall have no duty or responsibility in case of any default by the Company Corporation in the performance of its covenants or agreements contained herein or in the Global Warrants or in the [Offered Debt Securities or] Warrant Certificate Debt Securities or in the case of the receipt of any written demand from a an Owner or Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoinglimitation, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 8.03, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant AgentCorporation.
(k) In acting under this Agreement and in connection with the absence of bad faith on the part of the Warrant AgentWarrants, the Warrant Agent may conclusively rely, is acting solely as to the truth agent of the statements Corporation and the correctness does not assume any obligation or relationship of agency or trust for or with any of the opinions expressed therein, upon any certificates Owners or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers Holders of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsWarrants.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Debt Warrant Agreement (Ubs Preferred Funding Trust Iv), Debt Warrant Agreement (UBS Preferred Funding Trust VIII)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.2(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of Holders owners or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Currency Warrant Agreement (Dean Witter Discover & Co), Interest Rate Warrant Agreement (Dean Witter Discover & Co)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Warrant Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of such recitals or other statements. The Warrant Agent does not make any representation as to the samevalidity or sufficiency of this Warrant Agreement or the Warrant Certificates; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Warrant Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(A) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(B) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel (with respect to which such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the Company) with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Warrant Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsWarrant Agreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Warrant Agreement shall be sufficient if signed by its Chairman of the BoardPresident or, President, a Vice President or and attested by the its Treasurer, and by an Assistant TreasurerController, the Secretary or an any Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementSecretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Warrant Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the President, the Treasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Warrant Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Warrant Agreement and the date on or after which such action shall be taken, and the Warrant Agent shall not be liable with respect to for any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company given under receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this AgreementSection 6.2(n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(no) Whenever in the administration performance of the provisions of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe President, as the case may beTreasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed by the Warrant Agent to be authorized to give such instructions and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be grant full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Warrant Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Discovery Zone Inc), Warrant Agreement (Discovery Zone Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsthe proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the Company.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. The Company hereby authorizes its present and any successor Transfer Agent to comply with all such requests. The Company will supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Alexander & Alexander Services Inc), Warrant Agreement (Nabors Industries Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees Pattxxxxx xxxees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees Pattxxxxx xxxees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for Pattxxxxx xxx all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also Pattxxxxx xxxo agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and Pattxxxxx xxx does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and Pattxxxxx xxx may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company as Pattxxxxx xx freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements ), all of the Company and the Warrant Agent assumes no responsibility for the correctness of the samewhich are made solely by Pattxxxxx.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company Pattxxxxx xx any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant Pattxxxxx xxxsuant to this Agreement or for the application by Pattxxxxx of the Company proceeds of any proceedsthe Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in Pattxxxxx xx the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the CompanyPattxxxxx.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. Pattxxxxx xxxeby authorizes its present and any successor Transfer Agent to comply with all such requests. Pattxxxxx xxxl supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or them, arising out of or in connection with it acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, otherwise specifically provided herein or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth herein upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or be under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the Boardboard of directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the board of directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in this paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as CEO, the case may bepresident, the treasurer, the controller, any executive vice president, any vice president or the secretary or any assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Pathnet Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or them, arising out of or in connection with it acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This Section 5.02(a) shall survive the termination of this Agreement or the earlier resignation or removal or the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, herein or in the Global Warrant Certificate, Certificate otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its President, Chairman of the Board, Presidentofficer serving as Chief Financial Officer, a Treasurer, any Executive Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agentany Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s 's officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also agrees to indemnify the Warrant Agent and its officersAgent, directors, agents and employees for, for and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Companyin Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, not in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsthe proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the Company.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. The Company hereby authorizes its present and any successor Transfer Agent to comply with all such requests. The Company will supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Alexander & Alexander Services Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.any
Appears in 1 contract
Samples: Warrant Agreement (Salomon Smith Barney Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Warrant Agent shall be entitled to such compensation as the Company agrees promptly to pay and the Warrant Agent the compensation shall from time to be agreed time agree upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection (who may be counsel for the Company) and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global Warrant any Warrant, Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Director its president, Presidentits treasurer, a Vice President its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) adjustment pursuant to Article V hereof. The Warrant Agent shall not be liable responsible for the Company's failure to comply with respect to any action taken or omitted this Article V.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, o cause to be taken performed, executed, acknowledged and delivered, all such further and other act instruments and assurances as may reasonably be required by it in accordance with any direction the Warrant Agent for the carrying out or performing by the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman c the Board of Directors, the president, the treasurer, the controller, an vice president or the secretary of the Company or any other officer or official of the Company reasonably believe to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consent to a shorter period), provided that (i) such application includes a statement to the effect that is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts ac- cepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Class B Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Class B Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection con- nection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and per- formance of its obligations hereunder. The obligations of the Warrants or Company under this Section 7.02 shall survive the Global exercise and the expiration of the Class B Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses re- moval of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Class B Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation obli- gation or relationship of agency or trust for or with any of the owners or Holders holders of the Class B Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Class B Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Class B Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented pre- sented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Re- lated Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Class B Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Class B Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Class B Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Class B Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Class B Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Class B Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Class B Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any mat- ter contemplated by this Class B Warrant Agreement, it may require:
(1) the certificate of an officer of the Company (an “Officer’s Certificate”) stating on behalf of the Company that, in the opinion of the signer, all conditions xxxxx- xxxx, if any, provided for in this Class B Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one custom- arily opined on by counsel. Each Officer's Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Class B Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or inves- tigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Class B Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Class B Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Class B Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company Com- pany pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Class B Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Class B Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoingforego- ing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, requestre- quest, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treas- urer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall have no responsibility in respect of any adjustment pursuant to Article VI hereof. The Warrant Agent shall not be liable responsible for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsCompany's failure to comply with this Article VII.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instru- ments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken per- forming by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instruc- tions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Com- pany or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its du- ties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accor- dance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written in- structions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such appli- cation on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Com- pany prior to taking or suffering any action to be taken hereunder, such fact or matter (unless other evidence in respect re- spect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Warrant Agent, may be deemed to be conclusively proved and established estab- lished by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Di- rectors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such in- structions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement Agree- ment in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Class B Warrant Agreement
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of -------- ------- its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (m) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (m) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or them, arising out of or in connection with it acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, herein or in the Global Warrant Certificate, Certificate otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its President, Chairman of the Board, Presidentofficer serving as Chief Financial Officer, a Treasurer, any Executive Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agentany Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s 's officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees Pattxxxxx xxxees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees Pattxxxxx xxxees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for Pattxxxxx xxx all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also Pattxxxxx xxxo agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and Pattxxxxx xxx does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and Pattxxxxx xxx may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company as Pattxxxxx xx freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements ), all of the Company and the Warrant Agent assumes no responsibility for the correctness of the samewhich are made solely by Pattxxxxx.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company Pattxxxxx xx any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant Pattxxxxx xxxsuant to this Agreement or for the application by Pattxxxxx xx the Company proceeds of any proceedsthe Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in Pattxxxxx xx the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the CompanyPattxxxxx.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. Pattxxxxx xxxeby authorizes its present and any successor Transfer Agent to comply with all such requests. Pattxxxxx xxxl supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates Certificate, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or gross negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithCertificate, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants Warrantholders or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under the Indenture.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificate.
(g) The Warrant Agent shall not be under incur any responsibility liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificate.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate contained (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant Warrantholder with respect to such default, except as provided in Section 6.02 6.2 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or them, arising out of or in connection with it acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, otherwise specifically provided herein or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s 's officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, PROVIDED that such matter is one customarily opined upon by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates duly authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Boardchief executive officer, Presidentits president, a Vice President its chief financial officer or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary any executive vice president of the Company and delivered to signing alone, or by any vice president signing together with the Warrant Agent.
(k) In secretary, any assistant secretary, the absence of bad faith on the part treasurer or any assistant treasurer of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCompany.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chief executive officer, the president, the chief financial officer, any executive vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period); PROVIDED that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chief executive officer, as the case may bepresident, the chief financial officer, any executive vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Convergent Communications Inc /Co)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("WARRANT AGENT RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Warrant Agent Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(i) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(ii) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (m) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (m) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Coinstar Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an officers' certificate (a certificate signed by the chairman or a co-chairman of the board of directors of the Company, the president, the chief financial officer, any executive vice president or any senior vice president of the Company signing alone, or by any vice president signing together with the secretary, any assistant secretary, the treasurer, or any assistant treasurer of the Company) (an "OFFICERS' CERTIFICATE") stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined upon by counsel. Each Officers' Certificate or, if requested or required by this Agreement, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates duly authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman the chairman or a co-chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurerboard, the Secretary president, the chief financial officer, any executive vice president or an Assistant Secretary any senior vice president of the Company and delivered to signing alone, or by any vice president signing together with the Warrant Agent.
(k) In secretary, any assistant secretary, the absence of bad faith on the part treasurer, or any assistant treasurer of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCompany.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman or a co-chairman of the , the president, the chief financial officer, any executive vice president or any senior vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer, of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period); provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Wireless One Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the BoardBoard of Directors, its President, a its Treasurer, its Controller or any Vice President or by the Treasurer, and by an Assistant Treasurer, the its Secretary or an any Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementSecretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the Chairman of the Board of Directors, the President, the Treasurer, the Controller, any Vice President or the Sec retary or any Assistant Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe Chairman of the Board of Directors, as the case may bePresident, the Treasurer, the Controller, any Vice President or the Secretary or any Assistant Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Wam Net Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its undertakes the duties and obligations herein set forth imposed by this Agreement upon the following terms and conditions hereof and of the Global Warrant Certificates including the followingconditions, to by all of which the Company agrees and to all the holders of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrants, by their acceptance thereof, shall be subjectbound:
(a) The Company agrees promptly to pay statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the compensation to be agreed upon with correctness of any of the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of same except such as describe the Warrant Agent or themaction taken or to be taken by it. Except as herein otherwise provided, arising out of or in connection with it acting as the Warrant Agent hereunder or assumes no responsibility with respect to the Warrants execution, delivery or distribution of the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premisesCertificates.
(b) In acting under this Agreement and The Warrant Agent shall have no duty or responsibility in connection with case of any default by the Global Warrant Certificate, Company in the performance of its covenants or agreements contained in the Warrant Agent is acting solely as agent Certificates or the Indenture or in the case of the Company and does not assume receipt of any obligation written demand from a holder of a Warrant Certificate with respect to such default, including any duty or relationship of agency responsibility to initiate or trust for attempt to initiate any proceedings at law or with otherwise or to make any of demand upon the owners or Holders of the WarrantsCompany.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it, it (who may be counsel for the Company) and the advice Warrant Agent shall incur no liability or opinion responsibility to the Company or any holder of such counsel shall be full and complete authorization and protection any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for or in respect of any action taken or omitted or any thing suffered by it in reliance upon on any Global Warrant Certificate, notice, directionresolution, waiver, consent, certificateorder, affidavit, statement certificate or other paper paper, document or document reasonably instrument believed by it to be genuine and to have been signed, sent or presented or signed by the proper party or parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in the performance of its duties under this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement except as a result of its negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs or expenses which may be incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery or judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent and its officers, directors and employees, employees may act as Trustee under the Indenture and may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrant Certificates, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants the Debt Securities or other obligations of the Company as freely as if it were not the Warrant Agent. Nothing herein shall preclude the Warrant Agent hereunderfrom acting in any other capacity for the Company or for any other legal entity.
(fh) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may or do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its countersignature thereof).
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary or any Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
(l) Except as set forth in the Warrant Agreement, the Warrant Agent shall not be under any liability for interest on any monies moneys or other consideration at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates Certificate, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithCertificate, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.the
Appears in 1 contract
Samples: Warrant Agreement (Bottling Holdings Investments Luxembourg Commandite S.C.A.)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and Agent, its directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest --------------- in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereofcountersignature thereon).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of -------- ------- its duty to countersign the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under no obligation to institute any obligation action, suit or legal proceeding or to take any other action hereunder likely to involve it in expense unless the Company shall furnish the Warrant Agent with reasonable security and indemnity for any expense costs or liability, the payment of expenses which or indemnity satisfactory to it is not, in its reasonable opinion, assured to itmay be incurred. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate authenticated Certificates countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agentits secretary or any assistant secretary.
(k) In the absence The Warrant Agent shall have no responsibility in respect of bad faith on the part of the Warrant Agentany adjustment pursuant to Article V hereof.
(l) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent may conclusively rely, as to for the truth of the statements and the correctness of the opinions expressed therein, upon any certificates carrying out or opinions furnished to performing by the Warrant Agent which conform to of the requirements provisions of this Agreement.
(lm) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company given under receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect -------- that it is being made pursuant to this Agreementparagraph (m) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (m) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(n) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(o) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts ac- cepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Class C Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Class C Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection con- nection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and per- formance of its obligations hereunder. The obligations of the Warrants or Company under this Section 7.02 shall survive the Global exercise and the expiration of the Class C Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses re- moval of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Class C Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation obli- gation or relationship of agency or trust for or with any of the owners or Holders holders of the Class C Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Class C Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Class C Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented pre- sented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Re- lated Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Class C Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Class C Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Class C Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Class C Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Class C Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Class C Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Class C Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any mat- ter contemplated by this Class C Warrant Agreement, it may require:
(1) the certificate of an officer of the Company (an “Officer’s Certificate”) stating on behalf of the Company that, in the opinion of the signer, all conditions xxxxx- xxxx, if any, provided for in this Class C Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one custom- arily opined on by counsel. Each Officer's Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Class C Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or inves- tigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Class C Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Class C Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Class C Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company Com- pany pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Class C Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Class C Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoingforego- ing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, requestre- quest, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treas- urer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall have no responsibility in respect of any adjustment pursuant to Article VI hereof. The Warrant Agent shall not be liable responsible for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsCompany's failure to comply with this Article VII.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instru- ments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken per- forming by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instruc- tions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Com- pany or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its du- ties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accor- dance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written in- structions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such appli- cation on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Com- pany prior to taking or suffering any action to be taken hereunder, such fact or matter (unless other evidence in respect re- spect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Warrant Agent, may be deemed to be conclusively proved and established estab- lished by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Di- rectors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such in- structions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement Agree- ment in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement
Conditions of Warrant Agent’s Obligations. The ----------------------------------------- Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company Holdings agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company Holdings in writing for all services rendered by the Warrant Agent it and Holdings agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company Holdings also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of Holdings under this Section 6.02 shall survive the Warrants or exercise and the Global expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company Holdings and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an --------------- any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Holdings with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company Holdings and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company Holdings as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for Holdings.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Holdings and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, -------- however, that the Warrant Agent shall not be relieved of its duty to ------- authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by Holdings of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of Holdings that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for Holdings stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company Holdings of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company Holdings pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company Holdings in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the CompanyHoldings.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company Holdings made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Holdings agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of Holdings or any other officer or official of Holdings reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from Holdings may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after Holdings receives such application unless Holdings consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by Holdings prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of Holdings by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of Holdings or any other officer or official of Holdings reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant War- rant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve may, if it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved desirable, request such papers or established documents prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Salomon Smith Barney Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (m) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (m) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Orius Corp)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined upon by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates duly authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman the chairman or a co-chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurerboard, the Secretary president, the chief financial officer, any executive vice president or an Assistant Secretary any senior vice president of the Company and delivered to signing alone, or by any vice president signing together with the Warrant Agent.
(k) In secretary, any assistant secretary, the absence of bad faith on the part treasurer, or any assistant treasurer of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCompany.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman or a co-chairman of the board, the president, the chief financial officer, any executive vice president or any senior vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer, of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period); provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Dti Holdings Inc)
Conditions of Warrant Agent’s Obligations. The ----------------------------------------- Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each successor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themsuccessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest --------------- in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution recitals and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates and shall not be under any responsibility in respect of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except, in each case, the due execution and delivery hereof by the Warrant Agent) or in respect of the validity or sufficiency or execution of any Warrant Certificate (except, in each case, its authentication thereof); provided, however, that the Warrant Agent shall not be -------- ------- relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement.
(h) The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (defined earlier) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its clerk or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the clerk of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the clerk of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Call Points Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company Com- pany agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility responsibil- ity for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesfees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.action
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals contained or representations herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsthe proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the Company.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. The Company hereby authorizes its present and any successor Transfer Agent to comply with all such requests. The Company will supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company Partnership agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company Partnership in writing for all services rendered by it and the Warrant Agent Partnership agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunderhereunder and execution of this Agreement. The Company Partnership also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting or acceptance as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder, including without limitation, the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim (whether asserted by the Partnership, a holder or any other Person) of liability in liability, including reasonable attorney's fees and expenses. The obligations of the premisesPartnership under this Section 6.02 shall survive the exercise and the expiration of the Warrant Certificates and the resignation and removal of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company Partnership and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any --------------- interest in, any Warrants Warrant Certificates, limited partnership interests or other obligations of the Company, Partnership with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company Partnership and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants limited partnership interests or other obligations of the Company Partnership as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Partnership.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Partnership and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) . The Warrant Agent shall be obligated does not make any representation as to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties validity or obligations shall be read into sufficiency of this Agreement or the Global Warrant Certificate against Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent. The -------- ------- Warrant Agent shall not be under any obligation relieved of its duty to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by authenticate the Warrant Agent and delivered Certificates as authorized by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.this
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined upon by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates duly authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman the chairman or a co-chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurerboard, the Secretary president, the chief financial officer, any executive vice president or an Assistant Secretary any senior vice president of the Company and delivered to signing alone, or by any vice president signing together with the Warrant Agent.
(k) In secretary, any assistant secretary, the absence of bad faith on the part treasurer, or any assistant treasurer of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementCompany.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman or a co-chairman of the board, the president, the chief financial officer, any executive vice president or any senior vice president alone, or any vice president together with the secretary, assistant secretary, the treasurer or any assistant treasurer, of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period); provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in this paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an officers' certificate stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 8.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken or omitted and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate ------------ Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of ----------------- its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an officers' certificate executed by a duly authorized officer of the Company stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each officers' certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent ------------ shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts. instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than ten Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-of- pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or them, arising out of or in connection with it acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or the indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, herein or in the Global Warrant Certificate, Certificate otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its President, Chairman of the Board, Presidentofficer serving as Chief Financial Officer, a Treasurer, any Executive Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agentany Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Company given under this Agreement.
(nm) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s 's officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(on) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees (“Related Parties”), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers’ Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers’ Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The the Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent’s duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Transportation Technologies Industries Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Warrant Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of such recitals or other statements. The Warrant Agent does not make any representation as to the samevalidity or sufficiency of this Warrant Agreement or the Warrant Certificates; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Warrant Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrain from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(A) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(B) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel (with respect to which such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the Company) with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Warrant Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsWarrant Agreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Warrant Agreement shall be sufficient if signed by its Chairman of the BoardPresident or, President, a Vice President or and attested by the its Treasurer, and by an Assistant TreasurerController, the Secretary or an any Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementSecretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Warrant Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the President, the Treasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Warrant Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Warrant Agreement and the date on or after which such action shall be taken, and the Warrant Agent shall not be liable with respect to for any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company given under receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this AgreementSection 6.2(n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(no) Whenever in the administration performance of the provisions of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe President, as the case may beTreasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed by the Warrant Agent to be authorized to give such instructions and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be grant full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Warrant Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or themany such other person, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the advice or any written opinion of such 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 accordance with the advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it in good faith to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, Shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor Certificates. In no instance shall it be obligated to segregate such monies from other monies held by it, except as required by law. The the Warrant Agent shall have any liability under or pursuant to this Agreement for special or consequential damages (including without limitation loss of profits), whether or not be responsible for advancing funds on behalf advised of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentslikelihood thereof.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for the due execution and delivery of this Agreement by the Warrant Agent, as to which it hereby so represents and warrants; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company (who may be the Company's general counsel) stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provide that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express his or her opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein herein, and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to 34 -29- initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with such instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make risk or expend its own funds in the performance of its obligations and duties hereunder.
(q) As used herein, a "RESPONSIBLE OFFICER" of the Warrant Agent shall mean any investigation into officer working in its Corporate Trust Department and having responsibility for the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms administration of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity , or uncertainty exists hereunder to whom as specific matters concerning this Agreement is referred because of his or in any notice, instruction, direction, request her familiarity with or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction knowledge of the Warrant Agentsubject matter.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth under this Agreement upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each successor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themsuccessor Warrant Agent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02(a) shall survive the Global exercise of the Warrants, the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing damage suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, Nothing herein shall require the Warrant Agent to perform any calculations with respect to the Warrants and it shall not be liable in any event for specialentitled to rely on calculations delivered to it by the Company, punitive, indirect, incidental members of its Board of Directors or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionits authorized officers.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees (collectively, the “Related Parties”), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, Shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or the Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of same. The Warrant Agent does not make any representation as to the samevalidity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Agreement, it may require:
(1) an Officer’s Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officer’s Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Boardchief executive officer, Presidentits president, a Vice President its treasurer, its controller, any vice president or by the Treasurer, and by an Assistant Treasurer, the Secretary its secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chief executive officer, the president, the treasurer, the controller, any vice president or the secretary or an assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent’s duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe chief executive officer, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or an assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent its obligations and duties hereunder, the Warrant Agent, may, in or take any action for which it is not fully indemnified to its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentsatisfaction.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Warrant Agent shall be entitled to such compensation as the Company agrees promptly to pay and the Warrant Agent the compensation shall from time to be agreed upon with the Company time agree in writing for all services rendered by the Warrant Agent and to hereunder (including in any other agent capacity in which it acts). The Company shall reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or negligence, bad faith or willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of or liability in connection with the premisesexercise or performance of any of its powers or duties hereunder. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) Any request, direction, order or demand of the Company or the Guarantor mentioned herein shall be sufficiently evidenced by, and whenever in the administration of this Agreement the Warrant Agent shall deem it desirable that a matter be proved or established prior to taking, offering or omitting any action hereunder, the Warrant Agent may rely upon, an Officers’ Certificate of the Company or the Guarantor, as applicable (unless other evidence in respect thereof be herein specifically prescribed); provided, however, that no additional certificate need be furnished by the Company or the Guarantor pursuant to Section 9.02 if the Warrant Agent requests a certificate pursuant to this Section 7.02(d).
(e) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(ef) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepositary, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(fg) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(gh) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Warrants (except its authentication countersignature thereof).
(hi) The recitals contained herein and in the Global Warrant Certificate Warrants (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as the statements of the Company and the Guarantor, and the Warrant Agent assumes no responsibility for the correctness of the same.
(ij) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the any Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(pl) In the event the The Warrant Agent believes may execute any ambiguity or uncertainty exists of the powers hereunder or in perform any noticeduties hereunder either directly or by or through agents, instructionattorneys, directioncustodians or nominees appointed with due care, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in responsible for any way to misconduct or negligence on the Companypart of any agent, any Holders attorney, custodian or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentnominee so appointed.
Appears in 1 contract
Samples: Warrant Agreement (Citigroup Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent ----------------------------------------- hereby accepts and agrees to its obligations herein set forth herein upon the terms and conditions hereof and hereof, including, without limitation, each of the Global Warrant Certificates including the following, to by all of which the Company agrees and to all each Warrant Holder, by acceptance of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants his respective Warrants, shall be subjectbound:
(a) The Company agrees to promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesattorneys' fees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred incurred, without negligence or bad faith on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the Warrant Holders or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it, it and the advice Warrant Agent shall incur no liability to the Company or opinion of such counsel shall be full and complete authorization and protection any Warrant Holder, in respect of any action taken, suffered or omitted by it hereunder taken in accordance with good faith reliance on the advice or opinion of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper party or parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner owners of, or acquire an any interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Warrant Holders or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals or representations contained herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely which may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to itassured. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsthe proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2, to make any demand upon the Company.
(j) Unless herein, or in the Global The Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication Agent is hereby authorized to obtain from time to time from the Company made or given by present transfer agent for the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of Warrant Securities (the Board, President, a Vice President or by the Treasurer"Transfer Agent"), and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant any successor Transfer Agent, the Warrant stock certificates required to honor outstanding Warrants. The Company hereby authorizes its present and any successor Transfer Agent to comply with all such requests. The Company will supply such Transfer Agent with duly executed stock certificates for such purpose and will provide or otherwise make available any cash which may conclusively relybe payable as provided in Section 2.3 hereof, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable responsible for any error of judgment made delay or failure by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant such Transfer Agent was negligent in ascertaining the pertinent factssupplying such stock certificates.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys’ fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The Warrant Agent agrees to indemnify the Company for, and to hold it harmless against, any loss, liability, cost or expense (including reasonable attorneys’ fees and expenses) incurred by the Company by reason of its being made a party to a suit or claim arising out of this Agreement as a result of the negligence or bad faith of the Warrant Agent or breach by it of the terms of this Agreement arising out of or in connection with its acting as Warrant Agent hereunder. The obligations of the Company and the Warrant Agent] under this Section 5.03(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of Holders owners or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or themits officers, directors, agents and employees, arising out of or in connection with it acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrantholders shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. This section shall survive the termination of this Agreement and the earlier removal or resignation of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, and the Warrant Agent may, if it shall not be liable in deem it necessary or desirable, request such papers or documents prior to taking any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaction hereunder.
(e) The Warrant Agent, and its officers, directors directors, agents and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositarydepository, trustee or agent for, any committee or body of Holders holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate Certificates (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the any Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreementdocument.
(pk) In the event the The Warrant Agent believes may execute any ambiguity of the trusts or uncertainty exists powers hereunder or in perform any noticeduties hereunder either directly or by or through agents, instructionattorneys, directioncustodians or nominees appointed with due care, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in responsible for any way to misconduct or negligence on the Companypart of any agent, any Holders attorney, custodian or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agentnominee so appointed.
Appears in 1 contract
Samples: Warrant Agreement (Salomon Smith Barney Holdings Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it it, in the absence of bad faith, to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) . The Warrant Agent shall be obligated does not make any representation as to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties validity or obligations shall be read into sufficiency of this Agreement or the Global Warrant Certificate against Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent. The Warrant Agent shall not be under any obligation relieved of its duty to take any action hereunder likely to involve it in any expense or liability, authenticate the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to itWarrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable or under any duty or responsibility for the use or application by the Company of the Global Warrant Certificate authenticated by proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent and delivered by it to the Company pursuant to this Agreement acts or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand refrains from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable acting with respect to any action taken or omitted to be taken matter contemplated by this Warrant Agreement, it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.require:
Appears in 1 contract
Samples: Warrant Agreement (Packaged Ice Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company set forth in writing Exhibit B hereto for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-of- pocket expenses (including counsel attorneys’ fees and expenses) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damageliability, costclaim, penalty, liability damage or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending itself against any claim of liability in the premises. The Warrant Agent agrees to indemnify the Company for, and to hold it harmless against, any loss, liability, cost or expense (including reasonable attorneys’ fees and expenses) incurred by the Issuer by reason of its being made a party to a suit or claim arising out of this Warrant Agreement as a result of the gross negligence, bad faith or willful misconduct of the Warrant Agent arising out of or in connection with its acting as Warrant Agent hereunder. The obligations of the Company and the Warrant Agent under this Section 5.03(a) shall survive the termination of this Agreement and resignation or removal of the Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as a non-fiduciary agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent undertakes to perform such duties and only such duties as are expressly set forth herein to be performed by it, and no implied duties, covenants or obligations, fiduciary or otherwise, shall be read into this Agreement against the Warrant Agent.
(d) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel. In no event shall the Warrant Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(de) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ef) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositary, trustee or agent for, any committee or body of Holders of Warrants owners or Warrantholders or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(fg) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(gh) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof)) or with respect to any matter relating to the offering material used in connection with the offer and sale of the Warrants.
(hi) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(ij) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant Warrantholder with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, The Warrant Agent shall have no obligation or liability in respect of the Global Warrant Certificate, otherwise specifically provided, registration or exemption therefrom of the Warrants under federal or state securities laws in respect of the sufficiency or the conformity of any order, certificate, notice, request, direction or other communication from transfer of the Company made or given by Warrants pursuant to the Company under any provision terms of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementother document contemplated hereby.
(l) The Warrant Agent shall not be responsible or liable for any error failure or delay in the performance of judgment made its obligations under this Agreement arising out of or caused, directly or indirectly, by an officer circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or officers of military disturbances; terrorism; sabotage not caused by the Warrant Agent; epidemics; riots; loss or malfunction of utilities, unless computer (hardware or software) or communications service not caused by the Warrant Agent; accidents not caused by the Warrant Agent; labor disputes; acts of civil or military authority or governmental actions; it shall be conclusively determined by a court of competent jurisdiction being understood that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable use reasonable efforts which are consistent with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever accepted practices in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior banking industry to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, resume performance as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it soon as practicable under the provisions of this Agreement upon the faith thereofcircumstances.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) . The Warrant Agent shall be obligated does not make any representation as to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties validity or obligations shall be read into sufficiency of this Agreement or the Global Warrant Certificate against Certificates; provided however, that the Warrant Agent. The Warrant Agent shall not be under any obligation relieved of its duty to take any action hereunder likely to involve it in any expense or liability, authenticate the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to itWarrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable or under any duty or responsibility for the use or application by the Company of the Global Warrant Certificate authenticated by proceeds of the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company exercise of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the CompanyWarrant.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (XCL LTD)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Warrant Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of such recitals or other statements. The Warrant Agent does not make any representation as to the samevalidity or sufficiency of this Warrant Agreement or the Warrant Certificates; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Warrant Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrain from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(A) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(B) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel (with respect to which such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the Company) with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Warrant Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsWarrant Agreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Warrant Agreement shall be sufficient if signed by its Chairman of the BoardPresident or, President, a Vice President or and attested by the its Treasurer, and by an Assistant TreasurerController, the Secretary or an any Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementSecretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Warrant Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the President, the Treasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Warrant Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Warrant Agreement and the date on or after which such action shall be taken, and the Warrant Agent shall not be liable with respect to for any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company given under receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this AgreementSection 6.2(n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(no) Whenever in the administration performance of the provisions of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe President, as the case may beTreasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed by the Warrant Agent to be authorized to give such instructions and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be grant full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Warrant Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its undertakes the duties and obligations herein set forth imposed by this Agreement upon the following terms and conditions hereof and of the Global Warrant Certificates including the followingconditions, to by all of which the Company agrees and to all the holders of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrants, by their acceptance thereof, shall be subjectbound:
(a) The Company agrees promptly to pay statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the compensation to be agreed upon with correctness of any of the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of same except such as describe the Warrant Agent or themaction taken or to be taken by it. Except as herein otherwise provided, arising out the Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in connection the Warrant Certificates to be complied with by the Company nor shall it acting at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in the Exercise Price or in the number of Shares issuable upon exercise of any Warrant (except as Warrant Agent hereunder instructed by the Company), or to determine whether any facts exist which may require any such adjustments, or with respect to the Warrants nature or the Global Warrant Certificate and extent of or method employed in making any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrantssuch adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it, it (who may be counsel for the Company) and the advice Warrant Agent shall incur no liability or opinion responsibility to the Company or any holder of such counsel shall be full and complete authorization and protection any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for or in respect of any action taken or omitted or any thing suffered by it in reliance upon on any Global Warrant Certificate, notice, directionresolution, waiver, consent, certificateorder, affidavit, statement certificate or other paper paper, document or document reasonably instrument believed by it to be genuine and to have been signed, sent or presented or signed by the proper party or parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not Company agrees to pay to the Warrant Agent hereunder, and, to the extent permitted reasonable compensation for all services rendered by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunderunder this Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in the performance of its duties under this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement except as a result of its negligence or bad faith.
(f) The Warrant Agent shall not be under no obligation to institute any liability action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security and indemnity for interest on any monies at any time received by it pursuant to costs or expenses which may be incurred. All rights of action under this Agreement or under any of the provisions Warrants may be enforced by the Warrant Agent without the possession of this Agreement or any of the Global Warrant Certificate nor Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall it be obligated brought in its name as Warrant Agent, and any recovery or judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to segregate such monies the Company or otherwise act as fully and freely as though they were not the Warrant Agent under this Agreement, or a stockholder, director, officer or employee of the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other monies held capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by it, except as required by lawthe provisions hereof. The Warrant Agent shall not be responsible liable for advancing funds on behalf of the Company and shall have no duty anything which it may or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsdo or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(gi) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in , nor shall the Global Warrant Certificate (except Agent by any act hereunder be deemed to make any representation or warranty as to the Warrant Agent’s authentication thereon) shall be taken as the statements authorization or reservation of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall Shares to be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company issued pursuant to this Agreement or for any Warrant Certificate or as to whether the application by Shares will when issued be validly issued, fully paid and nonassessable or as to the Company Exercise Price or the number of Shares issuable upon exercise of any proceeds. Warrant.
(k) The Warrant Agent shall have no duty or responsibility in case of any default by the Company in is hereby authorized and directed to accept instructions with respect to the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication duties hereunder from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, the Chief Executive Officer, the President, a any Vice President or by President, the Treasurer, and by an Assistant Treasurer, the Secretary or an any Assistant Secretary of the Company Company, and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agentapply to such officers for advice or instructions in connection with its duties, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted suffered to be taken by it in good faith in accordance with instructions of any direction such officer or in good faith reliance upon any statement signed by any one of such officers of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary with respect to any fact or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be is herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Warrant Agent, which may be deemed to be conclusively proved and established by a certificate such signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereofstatement.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel attorneys' fees and expenses) incurred by the Warrant Agent without negligence or negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ ' fees and expenses) incurred without negligence or negligence, bad faith or breach of this Agreement on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to itit (including counsel to the Company), and the advice or opinion of such 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 accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act onon behalf of, or as depositarydepository, trustee or agent for, any committee or body of Holders owners or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCompany.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its authentication countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly herein specifically set forth herein and in the Global Warrant Certificate forth, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein in this Agreement or in any Warrant Certificate or the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.02 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Warrant Agent shall be entitled to compensation at its applicable rates in effect from time to time for all services rendered by it and the Company agrees promptly to pay the Warrant Agent the such compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent Agent, including the costs and expenses of defending itself against any claim or them, liability arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to hereunder. The obligations of the Warrants or Company under this subsection 14.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates and owes no fiduciary duty to any Person by reason of this Agreement.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to In the contraryabsence of bad faith or negligence on its part, the Warrant Agent shall not be liable for any action taken, suffered or omitted or for any error of judgment made by it in the performance of its duties under this Agreement. The Warrant Agent shall not be so liable for any event for special, punitive, indirect, incidental or consequential losses or damages error of any kind whatsoever (including but not limited to lost profits), even if judgment made in good faith unless the Warrant Agent has shall have been advised of negligent in ascertaining the likelihood of such loss or damage and regardless of the form of actionpertinent facts.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).by
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication 's countersignature thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to countersign the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under no obligation to institute any obligation action, suit or legal proceeding or to take any other action hereunder likely to involve it in expense unless the Company shall furnish the Warrant Agent with reasonable security and indemnity for any expense costs or liability, the payment of expenses which or indemnity satisfactory to it is not, in its reasonable opinion, assured to itmay be incurred. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate authenticated Certificates countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. Agreement.
(j) The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 17 hereof, to make any demand upon the Company.
(jk) Unless herein, or The Warrant Agent shall have no responsibility in the Global Warrant Certificate, otherwise specifically provided, respect of any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered adjustment pursuant to the Warrant AgentSection 10 hereof.
(kl) In the absence of bad faith on the part of the Warrant AgentThe Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent may conclusively rely, as to for the truth of the statements and the correctness of the opinions expressed therein, upon any certificates carrying out or opinions furnished to performing by the Warrant Agent which conform to of the requirements provisions of this Agreement.
(lm) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the board, any vice chairman of the board, the president, the treasurer, the controller, any vice president or the secretary of the Company and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or official. At any time the Warrant Agent may apply to the Company for written instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified (which date shall be not less than three business days after the Company given under this Agreement.
(nreceives such application unless the Company consents to a shorter period) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established unless, prior to taking or suffering omitting any such action, the Warrant Agent has received written instructions in response to such application specifying the action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereofomitted.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent hereby accepts and agrees to its obligations herein set forth herein upon the terms and conditions hereof and hereof, including, without limitation, each of the Global Warrant Certificates including the following, to by all of which the Company agrees and to all each Warrant Holder, by acceptance of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants its respective Warrants, shall be subjectbound:
(a) The Company agrees to promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesattorneys’ fees) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered hereunder by it hereunderthe Warrant Agent. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damageliability, costclaim, penalty, liability damage or expense (including reasonable attorneys’ fees and expenses) incurred incurred, without negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewithhereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premisessuch liability.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation obligation, fiduciary or otherwise, or relationship of agency or trust for or with any of the Warrant Holders or beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it, it and the advice Warrant Agent shall incur no liability to the Company or opinion of such counsel shall be full and complete authorization and protection any Warrant Holder, in respect of any action taken, suffered or omitted by it hereunder taken in accordance with good faith reliance on the advice or opinion of such counsel; provided, however, that the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document (whether in original or facsimile form) reasonably believed by it to be genuine and to have been presented or signed by the proper party or parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner owners of, or acquire an interest in, any Warrants or other obligations of the CompanyWarrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Warrant Holders or holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility have no liability with respect to the validity or sufficiency any invalidity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by any of the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof)Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals or representations contained herein and or in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s authentication countersignature thereon) shall be taken as ), all of which are made solely by the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the sameCompany.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely that may tend to involve it in any expense or liability, the payment of which or indemnity satisfactory to it within a reasonable time is not, in its reasonable opinion, assured to itassured. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsthe proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Quadramed Corp)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Warrant Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) such recitals or other statements. The Warrant Agent shall be obligated does not make any representation as to perform only such duties as are expressly set forth herein and in the Global validity or sufficiency of this Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against Certificates; provided, however, that the Warrant Agent. The Warrant Agent shall not be under any obligation relieved of its duty to take any action hereunder likely to involve it in any expense or liability, authenticate the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to itWarrant Certificates as authorized by this Warrant Agreement. The Warrant Agent shall not be accountable or under any duty or responsibility for the use or application by the Company of the Global Warrant Certificate authenticated by proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent and delivered by it to the Company pursuant to this Agreement acts or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand refrain from a Holder of a Warrant acting with respect to such defaultany matter contemplated by this Warrant Agreement, except as provided it may require:
(A) an Officers' Certificate stating that, in Section 6.02 hereof, including, without limiting the generality opinion of the foregoingsigners, any duty or responsibility all conditions precedent, if any, provided for in this Warrant Agreement relating to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.proposed action have been complied with; and
(jB) Unless herein, or if reasonably necessary in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part sole judgment of the Warrant Agent, an opinion of counsel for the Warrant Agent Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel (with respect to which such counsel may conclusively rely, as to the truth matters of fact, on a certificate or certificates of Officers of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(lCompany) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken compliance with a condition or omitted to be taken by it covenant provided for in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.include:
Appears in 1 contract
Samples: Warrant Agreement (New World Coffee Manhattan Bagel Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrants.Warrant Certificates. 15
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require (i) an Officers' Certificate stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with, and (ii) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include a statement that the person making such certificate or opinion has read such covenant or condition, a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with, and a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. 16
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than ten Business Days after the Company receives such application unless the Company consents to a shorter period); provided, that (i) such application includes a statement to the effect that it is being made pursuant to this Section 6.2(n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in this Section 6.2(n), and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.17
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsAffiliates, agents and employees for, and to hold it them and them their directors, officers, Affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Transportation Technologies Industries Inc)
Conditions of Warrant Agent’s Obligations. The Warrant ----------------------------------------- Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or --------------- acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be -------- ------- relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel.
(3) Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(4) a statement that the person making such certificate or opinion has read such covenant or condition;
(5) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(6) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(7) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, chief executive officer, the chief financial officer, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bechief executive officer, the chief financial officer, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement (Equinix Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(hi) The recitals contained herein and Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an officers' certificate stating on behalf of the Company that, in the Global opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with, provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(except 1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the Warrant Agent’s authentication thereon) shall be taken as nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the Company and the Warrant Agent assumes no responsibility for the correctness opinion of the samesuch person, such condition or covenant has been complied with.
(ij) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant 27 -23- Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 8.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts ac- cepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Class A Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Class A Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection con- nection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and per- formance of its obligations hereunder. The obligations of the Warrants or Company under this Section 7.02 shall survive the Global exercise and the expiration of the Class A Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses re- moval of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Class A Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation obli- gation or relationship of agency or trust for or with any of the owners or Holders holders of the Class A Warrant Certificates. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Class A Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Class A Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented pre- sented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Re- lated Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Class A Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Class A Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Class A Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Class A Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Class A Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Class A Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Class A Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any mat- ter contemplated by this Class A Warrant Agreement, it may require:
(1) the certificate of an officer of the Company (an “Officer’s Certificate”) stating on behalf of the Company that, in the opinion of the signer, all conditions xxxxx- xxxx, if any, provided for in this Class A Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one custom- arily opined on by counsel. Each Officer's Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Class A Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or inves- tigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Class A Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Class A Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Class A Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company Com- pany pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Class A Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Class A Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoingforego- ing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, requestre- quest, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treas- urer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall have no responsibility in respect of any adjustment pursuant to Article VI hereof. The Warrant Agent shall not be liable responsible for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsCompany's failure to comply with this Article VII.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instru- ments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken per- forming by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instruc- tions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Com- pany or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its du- ties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accor- dance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written in- structions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such appli- cation on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Com- pany prior to taking or suffering any action to be taken hereunder, such fact or matter (unless other evidence in respect re- spect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Warrant Agent, may be deemed to be conclusively proved and established estab- lished by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Di- rectors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such in- structions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement Agree- ment in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Warrant Agreement
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth herein upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an interest any Interest in, any Warrants Warrant certificates, shares or other obligations of the Company, Company with the same rights that it or they would have if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the Proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Supplemental Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Supplemental Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Supplemental Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly specifically set forth herein and in the Global Warrant Certificate Certificates, and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or be under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the Boardboard of directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the board of directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in this paragraph (n) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the board of directors, as CEO, the case may bepresident, the treasurer, the controller, any executive vice president, any vice president or the secretary or any assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Samples: Supplemental Warrant Agreement (Pathnet Telecommunications Inc)
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("RELATED PARTIES"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; PROVIDED, HOWEVER, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate (as defined in the Indenture) stating on behalf of the Company that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (m) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such paragraph (m) and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company Company, including, without limitation, the Notes, as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Warrant Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company Company, and the Warrant Agent assumes no responsibility for the correctness of such recitals or other statements. The Warrant Agent does not make any representation as to the samevalidity or sufficiency of this Warrant Agreement or the Warrant Certificates; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Warrant Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrain from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(A) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(B) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel (with respect to which such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the Company) with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Warrant Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsWarrant Agreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.2 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Warrant Agreement shall be sufficient if signed by its Chairman of the Board, President, a President or Vice President or and attested by the its Treasurer, and by an Assistant TreasurerController, the Secretary or an any Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this AgreementSecretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Warrant Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the President, the Treasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Warrant Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Warrant Agreement and the date on or after which such action shall be taken, and the Warrant Agent shall not be liable with respect to for any action taken or omitted to be taken by it in accordance with a proposal included in any direction of such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company given under receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this AgreementSection 6.2(n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(no) Whenever in the administration performance of the provisions of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe President, as the case may beTreasurer, the Controller, any Vice President or the Secretary of the Company or any other officer or official of the Company reasonably believed by the Warrant Agent to be authorized to give such instructions and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be grant full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Warrant Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The ----------------------------------------- Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon in a separate fee agreement with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without negligence or gross negligence, bad faith or willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without negligence or gross negligence, bad faith or willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.2 shall survive the Global exercise and the expiration of the Warrant Certificate ----------- Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Warrant Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, Agent and its officers, directors and employees, Related Parties may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.the
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of in the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent Agent, each predecessor Warrant Agent, and its their respective directors, officers, directorsaffiliates, agents and employees for, and to hold it and them its directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or thempredecessor Warrant Agent, arising out of or in connection with it its acting as such Warrant Agent hereunder and its exercise or with respect failure to exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateCertificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies money at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each Officers' Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company. The Warrant Agent shall not be obligated to perform any duty to the extent prohibited by law.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall not be liable for have no responsibility in respect of any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent factsadjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent shall not be liable with respect to any action taken for the carrying out or omitted to be taken performing by it in accordance with any direction the Warrant Agent of the Company given under provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement. Such application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent with respect to its duties or obligations under this Agreement and the date on or after which such action shall be taken and the Warrant Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall be not less than 10 Business Days after the Company receives such application unless the Company consents to a shorter period), provided that (i) such application includes a statement to the effect that it is being made pursuant to this paragraph (n) and that unless objected to prior to such date specified in the application, the Warrant Agent will not be liable for any such action or omission to the extent set forth in such application and (ii) prior to taking or omitting any such action, the Warrant Agent has not received written instructions objecting to such proposed action or omission.
(o) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners holders from time to time of the Warrants Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the shall be entitled to reasonable compensation to be agreed upon with the Company in writing for all services rendered by it and the Warrant Agent Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel reasonable fees and expensesexpenses of counsel) incurred by the Warrant Agent without gross negligence or bad faith willful misconduct on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its any predecessor Warrant Agent, their directors, officers, directorsaffiliates, agents and employees for, and to hold it them and them their directors, officers, affiliates, agents and employees harmless against, any loss, damage, cost, penalty, liability or expense of any nature whatsoever (including including, without limitation, reasonable attorneys’ fees and expensesexpenses of counsel) incurred without gross negligence or bad faith willful misconduct on the part of the Warrant Agent or themAgent, arising out of or in connection with it its acting as such Warrant Agent hereunder or with respect to and its exercise of its rights and performance of its obligations hereunder. The obligations of the Warrants or Company under this Section 6.02 shall survive the Global exercise and the expiration of the Warrant Certificate Certificates and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs resignation and expenses removal of defending against any claim of liability in the premisesWarrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant CertificateAgreement, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders holders of the WarrantsWarrant Certificates.
(c) The Warrant Agent may consult with counsel satisfactory to it, of its selection and the any advice or written opinion of such 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 accordance with the such advice or opinion of such counselopinion.
(d) The Warrant Agent shall be fully protected and shall incur no liability for or in respect of any action taken or omitted to be taken or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, opinion of counsel, instruction, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors directors, affiliates and employeesemployees ("Related Parties"), may become the owner owners of, or acquire an any interest in, any Warrants Warrant Certificates, shares or other obligations of the Company, Company with the same rights that it or they would have it if it were not the Warrant Agent hereunder, hereunder and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders holders of Warrants shares or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent or such Related Parties from acting in any other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for interest on on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely paymentsCertificates.
(g) The Warrant Agent shall not be under any responsibility with in respect to of the validity or sufficiency of this Agreement (or any term or provision hereof) or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with in respect to of the validity or execution of the Global any Warrant Certificate (except its authentication thereof).
(h) The recitals and other statements contained herein and in the Global Warrant Certificate Certificates (except as to the Warrant Agent’s 's authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent does not make any representation as to the validity or sufficiency of this Agreement or the Warrant Certificates, except for its due execution and delivery of this Agreement; provided, however, that the Warrant Agent shall not be relieved of its duty to authenticate the Warrant Certificates as authorized by this Agreement. The Warrant Agent shall not be accountable for the use or application by the Company of the proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with respect to any matter contemplated by this Warrant Agreement, it may require:
(1) an Officer's Certificate stating on behalf of the Company that, in the opinion of the signer, all conditions precedent, if any, provided for in this Warrant Agreement relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of the Warrant Agent, an opinion of counsel for the Company stating that, in the opinion of such counsel, all such conditions precedent have been complied with provided that such matter is one customarily opined on by counsel. Each Officer's Certificate or, if requested, an opinion of counsel with respect to compliance with a condition or covenant provided for in this Warrant Agreement shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(j) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Global Warrant Certificate Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceedsAgreement. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate Certificates or in the case of the receipt of any written demand from a Holder holder of a Warrant Certificate with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or or, except as provided in Section 7.02 hereof, to make any demand upon the Company.
(jk) Unless herein, or in the Global Warrant Certificate, otherwise specifically providedprovided herein, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman chairman of the BoardBoard of Directors, Presidentits president, a Vice President its treasurer, its controller or by the Treasurer, and by an Assistant Treasurer, the Secretary any vice president or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon its secretary or any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreementassistant secretary.
(l) The Warrant Agent shall have no responsibility in respect of any adjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from any one of the chairman of the Board of Directors, the president, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and to apply to such officers or officials for advice or instructions in connection with its duties, and it shall not be liable for any error of judgment made action taken or suffered to be taken by an officer it in good faith in accordance with instructions with respect to any matter arising in connection with the Warrant Agent's duties and obligations arising under this Agreement or officers for any delay in acting while awaiting instructions. Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, unless it shall set forth in writing any action proposed to be conclusively determined taken or omitted by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining under this Agreement and the pertinent facts.
(m) date on or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable with respect to for any action taken by, or omitted omission of, the Warrant Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken by it in accordance with any direction of the Company given under this Agreementor omitted.
(no) Whenever in the administration performance of the provisions of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that a any fact or matter be proved or established by the Company prior to taking or suffering any action to be taken hereunder, such fact or 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 Warrant Agent, may be deemed to be conclusively proved and established by a certificate signed on behalf of the Company by any one of Company’s officersthe chairman of the Board of Directors, as the case may bepresident, the treasurer, the controller, any vice president or the secretary or assistant secretary of the Company or any other officer or official of the Company reasonably believed to be authorized to give such instructions and delivered to the Warrant Agent Agent; and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, certificate shall be full warrant authorization to the Warrant Agent for any action taken, taken or suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon the faith thereofsuch certificate.
(op) The Warrant Agent shall not be bound required to make any investigation into risk or expend its own funds in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms performance of this Agreementits obligations and duties hereunder.
(pq) In the event the The Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not will be liable in any way hereunder to the Company, any Holders or Company and any other person or entity only for refraining from taking such actionits own gross negligence, unless bad faith or willful misconduct or that of any agent or attorney appointed without due care.
(r) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity be liable for special, indirect or uncertainty to the satisfaction consequential loss or damage of the Warrant Agentany kind whatsoever (including, but not limited to, lost profits).
Appears in 1 contract
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificates Certificates, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders and beneficial owners from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company in writing for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence or bad faith on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent and its officers, directors, agents and employees for, and to hold it and them harmless against, any loss, damage, cost, penalty, liability or expense (including reasonable attorneys’ fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent or them, arising out of or in connection with it acting as Warrant Agent hereunder or with respect to the Warrants or the Global Warrant Certificate and any transactions or documents contemplated herewith or therewith, as well as the reasonable costs and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with the advice or opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or any thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent shall not be liable in any event for special, punitive, indirect, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire an interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositaryDepository, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
(g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent’s authentication thereon) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are expressly set forth herein and in the Global Warrant Certificate and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which or indemnity satisfactory to it is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 6.03 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein, otherwise specifically provided herein or in the Global Warrant Certificate, otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its Chairman of the Board, President, a Vice President or by the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Warrant Agent which conform to the requirements of this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made by an officer or officers of the Warrant Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with any direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the Warrant Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, 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 Warrant Agent, be deemed to be conclusively proved and established by a certificate signed by one of Company’s officers, as the case may be, and delivered to the Warrant Agent and such certificate, in the absence of negligence or bad faith on the part of the Warrant Agent, shall be full warrant to the Warrant Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document delivered to it pursuant to the terms of this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company, any Holders or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Warrant Agent.
Appears in 1 contract
