Common use of Duties of Guarantee Trustee Clause in Contracts

Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4 or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall have the right to enforce this Guarantee for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing or waiving of all Guarantee Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Trustee. If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee 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 Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a Majority in Liquidation Amount of the Trust PIERS relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; and (iv) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not expressly so provided, every provision of this Guarantee relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section 3.1 and Section 8.1.

Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4 5.4(iv) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default known to the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall have the right to enforce this Guarantee for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing or waiving of all Guarantee Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Guarantee Trustee. If a Guarantee Event of Default known to the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Guarantee Trustee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee 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 Guarantee Trustee and on their face conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not on their face they conform to the requirements of this Guarantee; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a Majority in Liquidation Amount of the Trust PIERS Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; and (ive) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not expressly so provided, every provision of this Guarantee relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section 3.1 and Section 8.1.

Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall have the right to enforce this Guarantee for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing or waiving of all Guarantee Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Trustee. If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision Except during the continuance of any Guarantee Event of Default: (i) The Guarantee Trustee need perform only those duties that are specifically set forth in this Guarantee shall be construed to relieve and no others. (ii) In the absence of bad faith on its part, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers' Certificates or opinions of counsel furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee; however, in the case of any such Officers' Certificates or opinions of counsel which by any provisions hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall examine such Officers' Certificates and opinions of counsel to determine whether or not they conform to the requirements of this Guarantee. (e) The Guarantee Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to This paragraph does not limit the occurrence effect of any Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: paragraph (Ad) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee 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 Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee;Section. (ii) the The Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee TrusteeOfficer, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;facts. (iii) the The Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to the Trust Preferred Securities in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust PIERS Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, Trustee or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; andGuarantee with respect to the Trust Preferred Securities. (ivf) no Every provision of this Guarantee that in any way relates to the Guarantee Trustee is subject to paragraphs (c), (d) and (e) of this Section. (g) The Guarantee Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (h) The Guarantee Trustee shall not be liable for interest on any money received by it except as the Guarantee Trustee may agree in writing with the Guarantor. Money held in trust by the Guarantee Trustee need not be segregated from other funds except to the extent required by law. (i) No provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal any financial liability in the performance of any of its duties duties, or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not expressly so provided, every provision of this Guarantee relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section 3.1 and Section 8.1.

Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall have the right to enforce this Guarantee for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing or waiving of all Guarantee Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Trustee. If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee 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 Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a Majority in Liquidation Amount of the Trust PIERS Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; and (ive) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not expressly so provided, every provision of this Guarantee relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section 3.1 and Section 8.1.

Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee.. 7 (b) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall have the right to enforce this Guarantee for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing or waiving of all Guarantee Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Trustee. If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision Except during the continuance of this any Guarantee shall be construed to relieve Event of Default: (i) the Guarantee Trustee need perform only those duties that are specifically set forth in this Guarantee and no others; and (ii) in the absence of bad faith on its part, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers' Certificates or Opinions of Counsel furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee; HOWEVER, in the case of any such Officers' Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall examine such Officers' Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Guarantee. (e) The Guarantee Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to this paragraph does not limit the occurrence effect of any Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: paragraph (Ad) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee 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 Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this GuaranteeSection; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee TrusteeOfficer, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;facts; and (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to the Trust Preferred Securities in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust PIERS Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, Trustee or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; andGuarantee with respect to the Trust Preferred Securities. (ivf) no Every provision of this Guarantee that in any way relates to the Guarantee Trustee is subject to paragraphs (c), (d) and (e) of this Section. 8 (g) The Guarantee Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (h) The Guarantee Trustee shall not be liable for interest on any money received by it except as the Guarantee Trustee may agree in writing with the Guarantor. Money held in trust by the Guarantee Trustee need not be segregated from other funds except to the extent required by law. (i) No provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal any financial liability in the performance of any of its duties duties, or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not expressly so provided, every provision of this Guarantee relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section 3.1 and Section 8.1.