Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct. (b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice: (i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that: (i) this clause does not limit the effect of clause (b) of this Section 11.1; (ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents; (iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby. (d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. (e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA). (f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement. (g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate. (h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required. (i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement. (j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents. (k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture. (l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default. (m) [Reserved]. (n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document. (o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty. (p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer. (q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article. (r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 6 contracts
Samples: Base Indenture (Oportun Financial Corp), Base Indenture (Oportun Financial Corp), Base Indenture (Oportun Financial Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 5 contracts
Samples: Indenture (Peloton Interactive, Inc.), Indenture (Coinbase Global, Inc.), Indenture (Coinbase Global, Inc.)
Duties of the Trustee. (a) If an Event of a Servicing Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(ba) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeServicing Default:
(i) the Trustee undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no others, Agreement with respect to the Trustee and no implied covenants or obligations shall be read into this Indenture or any related document Agreement against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this IndentureAgreement; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, that the Trustee shall examine the certificates and opinions delivered to it to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsAgreement.
(cb) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct misconduct, except that:
(i) this clause paragraph does not limit the effect of clause paragraph (b) of this Section 11.18.01;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust its Responsible Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to from the terms of the Indenture or the Transaction Documents;
(iv) the Majority Certificateholders. The Trustee shall not be charged with knowledge of liable for interest on any failure money received by the Servicer referred to Trustee. Money held in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of trust by the Trustee obtains actual knowledge of such failure need not be segregated from other trust funds except to the extent required by law or the Trustee receives written notice terms of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Agreement. No provision of this Indenture Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and or powers, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating it. Subject to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the other provisions of this Section Agreement and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture8.01, the Trustee shall have no duty (iA) to see to any recording, filing or depositing of this Indenture Agreement or any agreement referred to hereinherein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any recordingrerecording, refiling or redepositing of any thereof or thereof, (B) to see to the validity, perfection, continuation, or value of any lien or security interest created hereininsurance, (iiC) to see to the payment or discharge of any tax, assessment assessment, or other governmental Lien charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against against, any part of the IssuerTrust Fund other than from funds available in the Distribution Account, or (iiiD) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, .
(ivc) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall act as successor to the Servicer to the extent provided in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust EstateSection 7.02 hereof.
(hd) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, For all purposes under this IndentureAgreement, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Servicing Default unless a Trust Responsible Officer assigned to and working in the Trustee's corporate trust department has actual knowledge thereof or unless written notice of any event which is in fact such Servicing Default is received by the Trustee shall have received written at the Corporate Trust Office, and such notice thereof. In references the absence of receipt of such noticeCertificates generally, the Trustee may conclusively assume that there is no Default Trust, or Event of Default.
(m) [Reserved].
(n) this Agreement. The Trustee is hereby authorized to execute and 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 Issuerexecute this Agreement, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by Purchase Agreement, and the terms of this Base IndentureConverted Loan Purchase Agreement, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee and shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) perform their respective duties and satisfy their respective obligations thereunder. Every provision of the Indenture or any related document this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject apply to the provisions Trustee's execution of this ArticleAgreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and the performance of their respective duties and satisfaction of its obligations hereunder and thereunder.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Novastar Home Equity Loan Asset Backed Cert Series 2003-3), Pooling and Servicing Agreement (Novastar Mortgage Funding Corp Home Equity Loan Ser 2003-4), Pooling and Servicing Agreement (Novastar Mortgage Funding Corp Home Eq Ln as Bk Ce Se 03 2)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:Default,
(i1) the Trustee undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture andIndenture, if applicable, but not to verify the Transaction Documents to contents thereof or any conclusions therein.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee is has actual knowledge (in the case of an Event of Default under clause (1) or (2) of Section 501 hereof) or (in the case of any other Event of Default) of which written notice of such Event of Default shall have been given to a partyResponsible Officer of the Trustee by the Issuer, providedany other obligor of the Notes or by any Holder, further, that the Trustee shall not be responsible for the accuracy or content of any exercise such of the aforementioned documents rights and powers vested in it by this Indenture, and use the Trustee shall have no obligation to verify same degree of care and skill in their exercise, as a prudent person would exercise or recompute any numeral information provided to it pursuant to use under the Transaction Documentscircumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i1) this clause does paragraph (c) shall not be construed to limit the effect of clause paragraphs (ba) or (d) of this Section 11.1601;
(ii2) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to the terms time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyTrustee, under this Indenture.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights and or powers, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(e) Every Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)601.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 4 contracts
Samples: Indenture (Telesat Canada), Indenture (Telesat Canada), Indenture (Telesat Canada)
Duties of the Trustee. (a) On the Closing Date, the Trustee will act as disbursement agent and will distribute the proceeds from the sale of the Offered Certificates according to the closing settlement statement provided by the Seller. If an Event of a Servicing Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided. If the Class A-1 Insurer’s consent or direction is required prior to the Trustee taking any particular action, however, that the Trustee shall have no liability in connection with any action be deemed to be acting as a prudent person by waiting for such direction or inaction taken, or not taken, by it upon consent during the deemed occurrence continuation of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconductServicing Default.
(ba) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeServicing Default:
(i) the Trustee undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no others, Agreement with respect to the Trustee and no implied covenants or obligations shall be read into this Indenture or any related document Agreement against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this IndentureAgreement; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, that the Trustee shall examine the certificates and opinions delivered to it to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsAgreement.
(cb) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct misconduct, except that:
(i) this clause paragraph does not limit the effect of clause paragraph (b9) of this Section 11.18.01;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust its Responsible Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to from the terms of the Indenture Majority Certificateholders or the Transaction Documents;
(iv) the Class A-1 Insurer. The Trustee shall not be charged with knowledge of liable for interest on any failure money received by the Servicer referred to Trustee. Money held in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of trust by the Trustee obtains actual knowledge of such failure need not be segregated from other trust funds except to the extent required by law or the Trustee receives written notice terms of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Agreement. No provision of this Indenture Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and or powers, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating it. Subject to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the other provisions of this Section Agreement and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture8.01, the Trustee shall have no duty (iA) to see to any recording, filing or depositing of this Indenture Agreement or any agreement referred to hereinherein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any recordingrerecording, refiling or redepositing of any thereof or thereof, (B) to see to the validity, perfection, continuation, or value of any lien or security interest created hereininsurance, (iiC) to see to the payment or discharge of any tax, assessment assessment, or other governmental Lien charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against against, any part of the IssuerTrust Fund other than from funds available in the Distribution Account, or (iiiD) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, .
(ivc) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall act as successor to the Servicer to the extent provided in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust EstateSection 7.02 hereof.
(hd) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, For all purposes under this IndentureAgreement, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Servicing Default unless a Trust Responsible Officer assigned to and working in the Trustee’s corporate trust department has actual knowledge thereof or unless written notice of any event which is in fact such Servicing Default is received by the Trustee shall have received written at the Corporate Trust Office, and such notice thereof. In references the absence of receipt of such noticeCertificates generally, the Trustee may conclusively assume that there is no Default Trust, or Event of Default.
(m) [Reserved].
(n) this Agreement. The Trustee is hereby authorized to execute and 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 Issuerexecute this Agreement, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by Purchase Agreement, and the terms of this Base IndentureConverted Loan Purchase Agreement, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee and shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) perform their respective duties and satisfy their respective obligations thereunder. Every provision of the Indenture or any related document this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject apply to the provisions Trustee’s execution of this ArticleAgreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and the performance of their respective duties and satisfaction of its obligations hereunder and thereunder.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Trust Series 2004-2), Pooling and Servicing Agreement (NovaStar Certificates Financing CORP), Pooling and Servicing Agreement (NovaStar Certificates Financing LLC)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has actual or written noticeknowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture andIndenture, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee but shall have no obligation affirmative duty to verify or recompute any numeral information provided to it pursuant to the Transaction Documentscontents thereof.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.111.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to this Section 11.01 and Section 11.02, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)11.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-note registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 3 contracts
Samples: Indenture (Getaround, Inc), Convertible Note Subscription Agreement (InterPrivate II Acquisition Corp.), Indenture (Vertical Aerospace Ltd.)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith negligence or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 3 contracts
Samples: Indenture (Edgio, Inc.), Indenture (Limelight Networks, Inc.), Indenture (Limelight Networks, Inc.)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticeactual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture andIndenture, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee but shall have no obligation affirmative duty to confirm or verify the accuracy of mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, gross negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.111.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was grossly negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to this Section 11.01 and Section 11.02, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indentureliability.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(fF) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall will not be liable for interest on any money received by it it, except as the Trustee may separately agree in writing with the IssuerCompany. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(qG) Every provision Unless a Responsible Officer of the Indenture Trustee has received notice from the Company that the Company is required to pay Additional Interest or any related document relating has elected to pay Special Interest on the conduct or affecting the liability of or affording protection to Notes, the Trustee shall be subject to the provisions of this Articlemay assume no Additional Interest or Special Interest, as applicable, is payable.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 3 contracts
Samples: First Supplemental Indenture (Nogin, Inc.), Indenture (Nogin, Inc.), Indenture (Software Acquisition Group Inc. III)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(E) Whether or not therein provided, unless explicitly provided to the contrary, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(nF) The Trustee shall not be liable with in respect of any payment (as to the correctness of amount, entitlement to receive or any action taken other matters relating to payment) or omitted notice, in each case that is effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement ) or other Transaction Documentany records maintained by any co-Note Registrar with respect to the Notes.
(oG) The enumeration If any party fails to deliver a notice relating to an event the fact of any permissive right or power herein or in any other Transaction Document available which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee shall not be construed may conclusively rely on its failure to be receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the imposition Trustee had actual knowledge of a dutysuch event.
(pH) The Under no circumstances shall the Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability its individual capacity for the collection of any Contracts or Receivables or obligations evidenced by the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 3 contracts
Samples: Indenture (SMART Global Holdings, Inc.), Indenture (SMART Global Holdings, Inc.), Indenture (SMART Global Holdings, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:Default,
(i1) the Trustee undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture andIndenture, if applicablebut not to verify the contents thereof including, but not limited to, the Transaction Documents to accuracy of mathematical calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee is has actual knowledge or of which written notice of such Event of Default or failure to make such payment shall have been given to the Trustee by the Company, any other obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a party, provided, further, that prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. The Trustee shall not be responsible for deemed to have knowledge of, or be required to act (including the accuracy or content sending of any notice) based on, any event unless a Responsible Officer of the aforementioned documents and the Trustee shall have no obligation to verify receives written notice of such an event or recompute any numeral information provided to it pursuant to the Transaction Documentshas obtained actual knowledge of such an event.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i1) this clause does paragraph (c) shall not be construed to limit the effect of clause paragraph (ba) of this Section 11.1Section;
(ii2) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to the terms time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Transaction DocumentsTrustee, under this Indenture;
(iv4) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights and or powers, if there is reasonable ground ;
(5) the permissive right of the Trustee to take any action enumerated in this Indenture shall not be construed as determined a duty;
(6) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.Notes; and
(e7) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) obligation to see to pursue any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables action that is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations not in accordance with this Section 11.1 and the provisions of the Servicing Agreementapplicable law.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 3 contracts
Samples: Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.111.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 8.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 11.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)11.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no liability in connection with offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any action loss, claim, liability, cost, damage or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, gross negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to this Section 10.01 and Section 10.02, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section 10.01 and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section 10.02.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Indenture (Outbrain Inc.), Subordination Agreement (Outbrain Inc.)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indentureliability.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(fF) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall will not be liable for interest on any money received by it it, except as the Trustee may separately agree in writing with the IssuerCompany. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(qG) Every provision Unless a Responsible Officer of the Indenture Trustee has received notice from the Company that Additional Interest is owing on the Notes or any related document relating that the Company has elected to pay Special Interest on the conduct or affecting the liability of or affording protection to Notes, the Trustee shall be subject to the provisions of this Articlemay assume no Additional Interest or Special Interest, as applicable, is payable.
(rH) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee shall will not be responsible for or have any liability for the collection charged with knowledge of any Contracts document or Receivables or agreement other than this Indenture and the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 2 contracts
Samples: Indenture (Rocket Lab USA, Inc.), Indenture (Cerevel Therapeutics Holdings, Inc.)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the . The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable(but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the Transaction Documents delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including HVF’s compliance with any of its covenants hereunder (as to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation entitled to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsrely exclusively on Officer’s Certificates).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer HVF, Hertz or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance Noteholder or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(kg) Except as otherwise required Whether or permitted by the TIA (if not therein expressly so provided, every provision of this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleSection 10.1.
(rh) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any securities interest in the Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission or any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.
(i) The Trustee shall not be responsible for the existence, genuineness or have value of any liability of the Collateral or for the collection validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any Contracts action or Receivables omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of HVF to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of this Indenture or the recoverability of any amounts from an Obligor Related Documents by HVF or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Collateral Agent.
Appears in 2 contracts
Samples: Base Indenture (Hertz Global Holdings Inc), Base Indenture (Hertz Corp)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the . The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable(but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the Transaction Documents delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including HVF’s compliance with any of its covenants hereunder (as to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation entitled to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsrely exclusively on Officer’s Certificates).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer HVF, Hertz or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance Indenture Noteholder or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(kg) Except as otherwise required Whether or permitted by the TIA (if not therein expressly so provided, every provision of this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleSection 10.1.
(rh) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any securities interest in the Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission or any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.
(i) The Trustee shall not be responsible for the existence, genuineness or have value of any liability of the Collateral or for the collection validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any Contracts action or Receivables omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of HVF to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of this Indenture or the recoverability of any amounts from an Obligor Related Documents by HVF or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Collateral Agent.
Appears in 2 contracts
Samples: Base Indenture (Hertz Global Holdings Inc), Base Indenture (Hertz Global Holdings Inc)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that that, subject to clause (c) below, the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall be read into this the Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this the Indenture; provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable(but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the Transaction Documents delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ZVF’s compliance with any of its covenants hereunder (as to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation entitled to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsrely exclusively on Officer’s Certificates).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document or any other event that would constitute an Amortization Event, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer ZVF, Zipcar or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance Indenture Noteholder or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Base Indenture or any of the Transaction Related Documents, no provision of this the Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this the Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee Trustee, if it is the same entity as or is affiliated with such Paying Agent or the Registrar, shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(kg) Except as otherwise required Whether or permitted by the TIA (if this Indenture is required to be qualified under the TIA)not therein expressly so provided, nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every every provision of the Indenture or any related document relating to the conduct or of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleSection 10.1.
(rh) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Series-Specific Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any applicable Segregated Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the related Series-Specific Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral or any Series-Specific Collateral in its possession if the Collateral or any Series-Specific Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral or any Series-Specific Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.
(i) The Trustee shall not be responsible for the existence, genuineness or have value of any liability of the Collateral or any Series-Specific Collateral or for the collection validity, perfection, priority or enforceability of the security interest in any of the Collateral or any Series-Specific Collateral, whether impaired by operation of law or by reason of any Contracts action or Receivables omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any Series-Specific Collateral or any agreement or assignment contained therein, for the validity of the title of ZVF to the Collateral or any Series-Specific Collateral, for insuring the Collateral or any Series-Specific Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or any Series-Specific Collateral or otherwise as to the maintenance of the Collateral or any Series-Specific Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of the Indenture or the recoverability of any amounts from an Obligor Related Documents by ZVF or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Collateral Agent.
Appears in 2 contracts
Samples: Base Indenture (Zipcar Inc), Base Indenture (Zipcar Inc)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentthe Indenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of the Indenture, and the Trustee need perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall will be read into this the Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this the Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms Section 7.06.
(D) Each provision of the Indenture or the Transaction Documents;
(iv) that in any way relates to the Trustee shall not be charged with knowledge of any failure by the Servicer referred is subject to in clauses paragraphs (a)-(gA), (B) and (C) of this Section 2.04 10.01, regardless of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of whether such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyprovision so expressly provides.
(dE) Notwithstanding anything to the contrary contained in this Indenture or any No provision of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indentureliability.
(eF) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(nG) The Trustee shall not be liable with in respect of any payment (as to the correctness of amount, entitlement to receive or any action taken other matters relating to payment) or omitted notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement ) or other Transaction Documentany records maintained by any co-Note Registrar with respect to the Notes.
(oH) The enumeration If any party fails to deliver a notice relating to an event the fact of any permissive right or power herein or in any other Transaction Document available which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee shall not be construed may conclusively rely on its failure to be receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the imposition Trustee had actual knowledge of a dutysuch event.
(pI) Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(J) The Trustee shall will not be liable for interest on any money received by it it, except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of Company. Money held in trust by the Indenture or any related document relating Trustee need not be segregated from other funds, except to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Articleextent required by law.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: First Supplemental Indenture (Xeris Biopharma Holdings, Inc.), First Supplemental Indenture (Xeris Pharmaceuticals Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in any portion of the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Base Indenture (Oportun Financial Corp), Base Indenture (Oportun Financial Corp)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by any Co-Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreements. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities or Service Recipients.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement, financing change statement or continuation statement evidencing a Series Supplement security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of either or both Co-Issuers, either or both Managers, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof and Collateral Protection Advances to the extent the Servicer fails to make such Collateral Protection Advances; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed responsible for advancing any principal on the Senior Notes, any make-whole prepayment consideration, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Commitment Fees, any Post-ARD Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes; provided that, for the avoidance of doubt, the Trustee will not be required to make any Debt Service Advance in respect of any Class A-1 Notes Interest Adjustment Amount to the extent such Debt Service Advance would be the imposition duplicative of a dutyDebt Service Advance already made with respect to such Quarterly Calculation Date.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance or Collateral Protection Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance or Collateral Protection Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance or, on or after the 2021 Springing Amendments Implementation Date, if the Managers elect to eliminate the obligation of the Servicer and/or the Trustee to provide Advances upon satisfaction of the Rating Agency Condition or an Advance Suspension Period is then in effect. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance or Collateral Protection Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made. In no event shall the Trustee be required to make a Collateral Protection Advance, including a Requested Collateral Protection Advance, unless the Servicer has determined that such Collateral Protection Advance has been approved, the Servicer has subsequently failed to make such Collateral Protection Advance and the Trustee has not determined that such Collateral Protection Advance would be a “Nonrecoverable Advance” in accordance with the terms of this Indenture.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance or Collateral Protection Advance made thereby (with its own funds) for so long as such Debt Service Advance or Collateral Protection Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance or Collateral Protection Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Amendment No. 11 to the Amended and Restated Base Indenture (Driven Brands Holdings Inc.), Amendment No. 9 to the Amended and Restated Base Indenture (Driven Brands Holdings Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Security Agreements, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall be read into this the Indenture or any related document other Security Agreement against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this the Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to and contemplated by the terms of the Indenture or the Transaction Documents;Indenture.
(iv) the The Trustee shall not be charged with knowledge of Event of Default or a Rapid Amortization Event unless a Trust Officer obtains actual knowledge thereof or receives written notice thereof.
(v) The Trustee shall not be charged with knowledge of any failure default by the Servicer referred to Fleet Manager in clauses (a)-(g) the performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure thereof or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebythereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction DocumentsIndenture, no provision of this the Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or if it shall not have received indemnity reasonably satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (Registrar, if other than not the Trustee) , shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required; provided that, in connection with the Trustee’s performance of any such obligation of the Payment Agent to pay funds hereunder, the Trustee shall have received from the Paying Agent any such funds previously advanced to the Paying Agent.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.411.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Cargo Van/Pick Up Truck Base Indenture (Amerco /Nv/), Indenture Agreement (Amerco /Nv/)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.4.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Lessee in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer such Lessee or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may 100 be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except . The Trustee may allow and credit to AFC-II interest agreed upon by AFC-II and the Trustee from time to time as otherwise required or may be permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenturelaw.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Base Indenture (Avis Rent a Car Inc), Base Indenture (Avis Rent a Car Inc)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Responsible Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure Amortization Event, Custody Revocation Trigger Event, ARG Liquidation Event, any default by any Leasing Company, ARG or other Person in the Servicer referred to performance of its obligations under this Indenture or under any Collateral Agreement or Related Document (as such term is defined in clauses (a)-(gthe Leasing Company Base Indentures) of or any other event described in Section 2.04 of the Servicing Agreement 8.10(a) unless a Trust Responsible Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer ARG, any Leasing Company Trustee, any Leasing Company or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected therebythereby or otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Responsible Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except . The Trustee may allow and credit to ARG interest agreed upon by ARG and the Trustee from time to time as otherwise required or may be permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenturelaw.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Third Amended and Restated Series 2004 1 Supplement (Vanguard Car Rental Group Inc.), Base Indenture (Vanguard Car Rental Group Inc.)
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. -103- The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform to the requirements of this Indenture andAgreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall take such action as it deems appropriate to have the instrument corrected and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents NIMs Insurer and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to Certificateholders and take such further action as directed by the Transaction Documents.
(c) NIMs Insurer and the Certificateholders. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1Agreement, the Trustee shall not be liable, individually or as Trustee except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be personally liable liable, individually or as Trustee, for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the IssuerNIMs Insurer or the Holders of each Class of Certificates evidencing not less than 25% of the Voting Rights of such Class relating to the time, method and place of conducting any proceeding for any remedy available to the Servicer and/or a specified percentage of Noteholders Trustee, or exercising any trust or power conferred upon the Trustee under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.Agreement; and
(oiv) The enumeration except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any permissive right Permitted Investment, or power herein or if a default occurs in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on performance required under any money received by it except as Permitted Investment, the Trustee may separately agree in writing with and, subject to Section 8.01 and Section 8.02, upon the Issuer.
(q) Every provision request of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables NIMs Insurer or the recoverability Holders of the Certificates representing more than 50% of the Voting Rights allocated to any amounts from an Obligor Class of Certificates, shall take such action as may be appropriate to enforce such payment or any other Person owing any amounts as a result of any Contracts or Receivablesperformance, including after any default the institution and prosecution of any Obligor or any other such Personappropriate proceedings.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2005-Ff6)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeactual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer does not have actual knowledge or has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith negligence and willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify any information or recompute any numeral numerical information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.112.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction DocumentsSection 11.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga), (b) or (c) of Section 2.04 of the Servicing Agreement or any Default or Event of Default unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from an Enhancement Provider, the Servicer Servicer, the Issuer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this IndentureIndenture and none of the provisions contained in this Indenture shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under the Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of the Servicing Agreement.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Except for actions expressly authorized by this Indenture, the Trustee shall take no action to impair the value of any asset of the Trust Estate now existing or hereafter created or, after any Early Amortization Event or Default or Event of Default, reasonably likely to impair the interests of the Issuer in any asset of the Trust Estate now existing or hereafter created.
(h) Except as provided in this Section 12.1(h), the Trustee shall have no power to vary the corpus of the Trust Estate including the power to (i) accept any substitute obligation for an asset of the Trust Estate assigned by the Issuer under the Granting Clause or (ii) release any assets from the Trust Estate, except in each case as permitted or contemplated by the Transaction Documents, under Sections 5.9, 13.1, 13.4 hereof or pursuant to Section 2.11 of the Servicing Agreement.
(i) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they substantially conform to the requirements of this Indenture.
(j) Without limiting the generality of this Section 11.1 12.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created hereinthereof, (ii) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, or (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the any Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of the Receivable Files files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(hk) Subject to Section 11.1(d12.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jl) Subject to Section 11.412.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Documents.
(km) Except as otherwise required or permitted by the TIA (if Anything in this Indenture is required to be qualified under the TIA)contrary notwithstanding, nothing contained herein in no event shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on special, indirect or consequential loss or damage of any money received by it except as kind whatsoever (including but not limited to lost profits), even if the Trustee may separately agree in writing with the Issuer.
(q) Every provision has been advised of the Indenture likelihood of such loss or any related document relating to damage regardless of the conduct or affecting the liability form of or affording protection to the Trustee shall be subject to the provisions of this Articleaction.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallIf any party fails to deliver a notice relating to an event the fact of which, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction such event occurred, unless a Responsible Officer of the Issuer, the Servicer and/or a specified percentage Trustee had actual knowledge of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Documentevent.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Indenture (Cardlytics, Inc.), Indenture (Mirum Pharmaceuticals, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of a Default or an Event of Default of which a Trust Officer of the Trustee has written notice:Default,
(i1) the Trustee undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture andIndenture, if applicable, but not to verify the Transaction Documents to contents thereof.
(b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee is a partyhas actual knowledge or of which written notice of such Default or Event of Default shall have been given to the Trustee by the Company, providedany other obligor of the Notes or by any Holder, further, that the Trustee shall not be responsible for the accuracy or content of any exercise such of the aforementioned documents rights and powers vested in it by this Indenture, and use the Trustee shall have no obligation to verify same degree of care and skill in their exercise, as a prudent Person would exercise or recompute any numeral information provided to it pursuant to use under the Transaction Documentscircumstances in the conduct of such Xxxxxx’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i1) this clause does paragraph (c) shall not be construed to limit the effect of clause paragraph (ba) of this Section 11.1Section;
(ii2) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to the terms time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Transaction Documents;Trustee, under this Indenture; and
(iv4) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights and or powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(ed) Every Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved]Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(nK) The Trustee shall not be liable with respect the rights, privileges, protections, immunities and benefits given to any action taken or omitted the Trustee, including, without limitation, its right to be taken by it in good faith in accordance with the direction of the Issuerindemnified, are extended to, and shall be enforceable by, the Servicer and/or a specified percentage Trustee in each of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indentureits capacities hereunder (including, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except without limitation, as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any Note Agent), and each agent, custodian and other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personemployed to act hereunder.
Appears in 2 contracts
Samples: Indenture (Sabre Corp), Indenture (Sabre Corp)
Duties of the Trustee. In performing its obligations in relation to the Debentures:
(a) If an Event of Default has occurred The Trustee shall, subject to these presents, perform its duties and is continuingobligations, and of which a Trust Officer exercise its rights and discretions, in keeping with the trust reposed in the Trustee by the Debenture Holders, and shall further conduct itself, and comply with the provisions of the Trustee has written noticeIndian Trusts Act, the Trustee shall exercise such of the rights 1882 and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconductall other Applicable Laws.
(b) Except during The Trustee shall carry out all its obligations, duties and functions as the occurrence Trustee in accordance with Applicable Laws and continuance of an Event of Default of which a Trust Officer the terms set out in the Transaction Documents and where the same is silent or contrary to any other provision of the Trustee has written notice:
(i) Transaction Documents, on the Approved Instructions. It is hereby clarified that the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no othersshall, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) unless otherwise provided for in the absence Transaction Documents, seek written instructions from the Debenture Holders and only upon receipt of bad faith on its partApproved Instructions from the Debenture Holders, shall the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as exercise such rights and perform such duties and obligations referred to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any Transaction Documents. Notwithstanding such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trusteerequirement for instructions in writing, the Trustee shall examine never take any action inconsistent with the certificates and opinions to determine whether or not they conform to best interests of the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Debenture Holders. The Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant act contrary to the Transaction DocumentsApproved Instructions.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) If the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers have knowledge of the Trusteeoccurrence or continuance of any Event of Default or a Default, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to promptly notify the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyDebenture Holders.
(d) Notwithstanding anything The Trustee shall provide the Debenture Holders with information relating to any cure periods (if any) being availed by the contrary contained in this Indenture or any of Company under the Transaction Documents, no provision of this Indenture shall require Documents and any steps the Trustee Company takes or proposes to expend or risk its own funds or otherwise incur any financial liability in take to remedy the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this IndentureDefault.
(e) Every provision of this Indenture relating The Trustee shall promptly provide and notify all Debenture Holders once it receives any information or documents in relation to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Company.
(f) The Trustee shallshall not do any act, and hereby agrees that it will, perform all deed or thing which is prejudicial or detrimental to the interest of the obligations and duties required of it under the Servicing AgreementDebenture Holders.
(g) Without limiting the generality The Trustee shall do any act, deed or thing or refrain from doing any act, deed or thing, which may be reasonably expected of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recordingunder the given circumstances at that point in time, filing or depositing in exercise of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine its rights and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s perform its duties and obligations as Servicer under this Deed and as Custodian of the Receivable Files under the Servicer other Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d)Except as otherwise provided herein, or in the event that other Transaction Documents and under written instructions from the Paying Agent Debenture Holders, monies received by the Trustee hereunder (or pursuant to the Transfer Agent and Registrar (if other than Transaction Documents) for the benefit of the Debenture Holders shall be kept segregated from the other assets of the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, ; provided however that the Trustee shall not be obligated as soon as practicable upon written notice liable to a Trust Officer thereof and receipt make payment of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so requiredany interest thereon.
(i) No provision The Trustee shall keep copies of this Indenture shall be construed all reports and returns delivered to require it by the Trustee to perform, Company or accept any responsibility for the performance of, the obligations filed by it on behalf of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and Company, at the provisions cost of the Servicing AgreementCompany.
(j) Subject to Section 11.4, all moneys received by The Trustee shall satisfy itself that the Trustee shall, until used Offer Letter does not contain any matter which is inconsistent with the terms of the issue of Debentures or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documentswith this Deed.
(k) Except as otherwise required or permitted The Trustee shall call for reports on the utilization of funds raised by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose issue of this IndentureDebentures.
(l) The Trustee shall not be required to take notice or be deemed to ensure that the Debentures have notice or knowledge of any Default or Event of Default unless a Trust Officer been redeemed in accordance with the terms of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Defaultissue.
(m) [Reserved]The Trustee shall ensure the implementation of the conditions regarding creation of debenture redemption reserve and recovery expense fund as required in accordance with applicable law and shall issue a ‘No Objection Certificate (NOC)’ to BSE for refund of any balance in the recovery expense fund to the Issuer on repayment of the Debt to the Debenture Holders. The Trustee shall satisfy that there is no ‘default’ on any other listed debt securities of the issuer before issuing such NOC.
(n) The Trustee shall not be liable with respect to inform SEBI immediately of any action taken or omitted to be taken by it in good faith in accordance with the direction breach of the Issuer, Transaction Documents or provision of any Applicable Law in relation to the Servicer and/or a specified percentage Debentures upon becoming aware of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Documentbreach.
(o) The enumeration Trustee shall exercise due diligence to ensure compliance by the Company, with the provisions of any permissive right the Companies Act, LODR Regulations, this Deed or power herein or in any other Transaction Document available regulations issued by SEBI which apply to the Trustee shall not be construed to be the imposition of a dutyDebentures.
(p) The Subject to the requisite approval of the Debenture Holder(s) and the conditions as may be specified by SEBI from time to time, the Trustee shall not be liable for interest enter into the requisite inter-creditor agreements pursuant to the SEBI Default Circular on any money received by it except as behalf of the Trustee may separately agree in writing with the IssuerDebenture Holders.
(q) Every provision of the Indenture The Trustee shall call for and obtain periodic status/ performance reports / valuation reports / utilization reports or any related document relating other documents from the Company, as may be required for the Trustee to comply with its obligations under the Applicable Laws including, for monitoring the Recovery Expense Fund and DRR in relation to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleDebentures.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor issue letters, confirmations, no objection certificates and / or any other Person owing any amounts documents as a result requested by the Company in accordance with the Transaction Documents.
(s) The Trustee shall ascertain and satisfy itself that:
(i) Interest due on the Debentures has been paid to the Debenture Holder(s) on or before the relevant Interest Payment Dates;
(ii) the Debenture Holder(s) have been paid the monies due to them on Redemption Date.
(t) The Trustee shall seek the status of any Contracts payment from the Company and/or conduct independent assessment (viz., from the Company’s bank, Debenture Holders, Credit Rating Agencies etc.,) to determine if the Company fails to intimate the status of payment of the Redemption Amounts within 1(one) working day of the Redemption Date. Based on such assessment, the Trustee shall intimate stock exchange(s) and Depository the status of payment within 9 (nine) working days of the Redemption Date or Receivableswithin such other revised timelines as may be prescribed under Applicable Law. Further, including after any for continuous assessment of default status, the Trustee shall conduct independent assessment as given above and intimate the status of any Obligor or any other such Personpayment to the stock exchange(s) and Depository by the 7th working day of April of each Financial Year, if the Company fails to provide the updated status of the payment of the Debentures within the 2nd working day of April of the relevant Financial Year.
(u) The Trustee shall keep the information (pertaining to the details of bank account(s)) provided to it pursuant to the SEBI circular on ‘Operational Framework for transactions in defaulted debt securities maturity date/ redemption date under provisions of SEBI (Issue and Listing of Debt Securities) Regulations’ dated June 23, 2020 bearing reference number 2008SEBI/HO/DDHS/CIR/P/103/2020 (as amended from time to time) (“SEBI Operational Framework Circular”) as confidential and shall use the same only to the extent permissible and required under the SEBI Operational Framework Circular.
(v) The duties and obligations of the Trustee as set forth in the Companies (Share Capital and Debentures) Rules, 2014 and the Debenture Trustee Regulations shall be deemed to be incorporated herein by reference.
Appears in 2 contracts
Samples: Debenture Trust Deed, Debenture Trust Deed
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders or Certificateholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Base Indenture (Oportun Financial Corp), Base Indenture (Oportun Financial Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallIf any party fails to deliver a notice relating to an event the fact of which, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction such event occurred, unless a Responsible Officer of the Issuer, the Servicer and/or a specified percentage Trustee had actual knowledge of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Documentevent.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Indenture (Cytokinetics Inc), Indenture (DigitalOcean Holdings, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will, subject to the term hereof, be to await such directions and act or refrain from acting in accordance with such directions) provide notice thereof to the Control Party and the Back-Up Manager and exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Control Party Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform on their face to the requirements of this Base Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture. The Issuer and, by its acceptance of a Note, each Holder directs the Trustee to execute and deliver the Transaction Documents to which it is a party.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (ba) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, jurisdiction no longer subject to appeal or review that the Trustee was grossly negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a at the direction received by it pursuant to the terms of the Indenture or Manager, the Issuer, the Control Party and/or any Noteholder if direction from such Person is contemplated by the Transaction Documents;; provided that the Trustee shall have no responsibility for determining whether any such party is authorized to provide such direction hereunder or under any other Transaction Document.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Control Party Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Flow Sweeping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial liability or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. The Trustee may refuse to perform any duty or exercise any right or power unless it by the security afforded receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction DocumentsDocuments to which the Trustee is a party.
(kg) Except as otherwise required Whether or permitted by not therein expressly so provided, every provision of the TIA (if this Indenture is required and the other Transaction Documents relating to be qualified under the TIA)conduct of, nothing contained herein shall be deemed to authorize affecting the Trustee to engage in any business operations liability of, or any activities other than those set forth in this Indenture. Specificallyaffording protection to, the Trustee shall have no authority be subject to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose provisions of this IndentureSection 10.1.
(lh) The Trustee shall not be required to take notice responsible (i) for the existence, genuineness or be deemed to have notice or knowledge value of any Default or Event of Default unless a Trust Officer of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have received written notice thereof. In no duty to inquire as to the absence performance or observance of receipt any of such notice, the Trustee may conclusively assume that there is no Default terms of the Indenture or Event of Defaultthe other Transaction Documents by the Securitization Entities.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerControl Party, the Servicer and/or a specified Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power herein filing or in depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates, or other documents of the Manager, the Control Party, the Back-Up Manager or any other Person delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document available to believed by the Trustee shall not be construed to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties; provided that the Trustee may conclusively rely upon such documents and shall be fully protected in acting or refraining from acting thereon.
(pk) The Trustee shall not be liable for interest on special, indirect, consequential or punitive loss or damage of any money received by it except as kind whatsoever (including but not limited to lost profits), even if the Trustee may separately agree in writing with the Issuer.
(q) Every provision has been advised of the Indenture likelihood of such loss or any related document relating to damage and regardless of the conduct or affecting the liability form of or affording protection to the Trustee shall be subject to the provisions of this Articleaction.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 2 contracts
Samples: Base Indenture (Twin Hospitality Group Inc.), Base Indenture (Fat Brands, Inc)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no liability in connection with offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any action loss, claim, liability, cost, damage or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, gross negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to this Section 10.01 and Section 10.02, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section 10.01 and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section 10.02.
(fH) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance will not be liable in respect of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, payment (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance correctness of amount, entitlement to receive or observance of any of other matters relating to payment) or notice effected by the Issuer’s, the Seller’s, the Parent’s Company or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement except in the manner or on the day required to be performed by the its capacity as Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice pursuant to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement ) or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in records maintained by any other Transaction Document available co-Note Registrar with respect to the Trustee shall not be construed to be the imposition of a dutyNotes.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Magnite, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will, subject to the term hereof, be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Control Party Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform on their face to the requirements of this Base Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (ba) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, jurisdiction no longer subject to appeal or review that the Trustee was grossly negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a at the direction received by it pursuant to the terms of the Indenture or Manager, the Issuer, the Control Party and/or any Noteholder if direction from such Person is contemplated by the Transaction Documents;; provided that the Trustee shall have no responsibility for determining whether any such party is authorized to provide such direction hereunder or under any other Transaction Document.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Control Party Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Flow Sweeping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial liability or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. The Trustee may refuse to perform any duty or exercise any right or power unless it by the security afforded receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction DocumentsDocuments to which the Trustee is a party.
(kg) Except as otherwise required Whether or permitted by not therein expressly so provided, every provision of the TIA (if this Indenture is required and the other Transaction Documents relating to be qualified under the TIA)conduct of, nothing contained herein shall be deemed to authorize affecting the Trustee to engage in any business operations liability of, or any activities other than those set forth in this Indenture. Specificallyaffording protection to, the Trustee shall have no authority be subject to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose provisions of this IndentureSection 10.1.
(lh) The Trustee shall not be required to take notice responsible (i) for the existence, genuineness or be deemed to have notice or knowledge value of any Default or Event of Default unless a Trust Officer of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have received written notice thereof. In no duty to inquire as to the absence performance or observance of receipt any of such notice, the Trustee may conclusively assume that there is no Default terms of the Indenture or Event of Defaultthe other Transaction Documents by the Securitization Entities.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerControl Party, the Servicer and/or a specified Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power herein filing or in depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates, or other documents of the Manager, the Control Party, the Back-Up Manager or any other Person delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document available to believed by the Trustee shall not be construed to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties; provided that the Trustee may conclusively rely upon such documents and shall be fully protected in acting or refraining from acting thereon.
(pk) The Trustee shall not be liable for interest on special, indirect, consequential or punitive loss or damage of any money received by it except as kind whatsoever (including but not limited to lost profits), even if the Trustee may separately agree in writing with the Issuer.
(q) Every provision has been advised of the Indenture likelihood of such loss or any related document relating to damage and regardless of the conduct or affecting the liability form of or affording protection to the Trustee shall be subject to the provisions of this Articleaction.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Responsible Officer has not received written notice; and provided, provided further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure Amortization Event, Custody Revocation Trigger Event, Limited Liquidation Event of Default, Liquidation Event of Default, any default by the Servicer referred to Lessor, ARG, the Servicer, any Lessee or other Person in clauses (a)-(g) the performance of its obligations under any Related Document or any other event described in Section 2.04 of the Servicing Agreement 8.10(a), unless a Trust Responsible Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer Servicer, any Lessee or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected therebythereby or otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Responsible Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents. The Trustee may allow and credit to the Issuer interest agreed upon by the Issuer and the Trustee from time to time as may be permitted by law.
(kg) Except In the event that each person acting as otherwise required Independent Director (as defined in the GP Limited Liability Company Agreement) shall resign or permitted by the TIA (if this Indenture is required refuse to be qualified admitted to the General Partner as the Special Member (as defined in the GP Limited Liability Company Agreement) under the TIA), nothing contained herein shall be deemed to authorize circumstances contemplated by Section 5(c) of the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. SpecificallyGP Limited Liability Company Agreement, the Trustee shall have no authority appoint a person meeting the requirements of an Independent Director to engage act as the Special Member in any business operations, acquire any assets other than those specifically included in accordance with Section 5(c) of the Trust Estate under this Indenture or otherwise vary GP Limited Liability Company Agreement. If the assets held by Trustee fails to so appoint a person to act as the Issuer. SimilarlySpecial Member within thirty (30) days of the occurrence of the event that caused Vanguard to cease to be a member of the General Partner, the Trustee shall provide written notice of such event to the Noteholders, and the Requisite Noteholders shall have no discretionary duties other than performing those ministerial acts set forth above necessary the right to accomplish select a person for the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed appoint to have notice or knowledge of any Default or Event of Default unless a Trust Officer act as the Special Member of the Trustee General Partner. The General Partner shall have received provide prompt written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed of any event that causes Vanguard to cease to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision member of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleGeneral Partner.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Imax Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 7.06 or exercising any trust or power conferred upon the terms of Trustee, under this Indenture with respect to the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyNotes.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indentureliability.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(fF) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall will not be liable for interest on any money received by it it. Money held in trust by the Trustee need not be segregated from other funds, except as to the extent required by law.
(G) Unless a Responsible Officer of the Trustee has received notice from the Company that Additional Interest is owing on the Notes or that the Company has elected to pay Special Interest on the Notes, the Trustee may separately agree in writing with the Issuerassume no Additional Interest or Special Interest, as applicable, is payable.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which known to a Trust Officer of the Trustee has written noticeoccurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, exercise as a prudent man person would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer known to the Trustee:
(1) The duties of the Trustee has written notice:
(i) shall be determined solely by the express provisions of this Indenture, and the Trustee undertakes to need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee (but shall not be responsible for required to confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct misconduct, except that:
(i1) this clause This paragraph does not limit the effect of clause paragraph (b) or paragraph (e) of this Section 11.1Section;
(ii2) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers any other officer of the TrusteeTrustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby6.5.
(d) Notwithstanding anything Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the contrary contained in Trustee is subject to paragraphs (a), (b), (c) and (e) of this Indenture or any of the Transaction Documents, no Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powerspowers hereunder, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)it.
(f) The Trustee shall, and hereby agrees that shall not be liable for interest on or the investment of any money received by it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, except as the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to may agree in writing with the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed Company. Money held in trust by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documentslaw.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Navistar Financial Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no liability in connection with offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any action loss, claim, liability, cost, damage or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform on their face to the requirements of this Indenture andAgreement. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall notify the person providing such instrument of such non-conformance and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents Certificateholders and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to NIMs Insurer and take such further action as directed by the Transaction Documents.
(c) Certificateholders and the NIMs Insurer. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1;Agreement, the Trustee shall not be liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder; 132
(ii) the Trustee shall not not, individually or as Trustee, be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the IssuerNIMs Insurer or the Holders in accordance with this Agreement relating to the time, the Servicer and/or a specified percentage method and place of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on Trustee, or exercising any money received by it except as trust or power conferred upon the Trustee may separately agree in writing with the Issuerunder this Agreement.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform on their face to the requirements of this Indenture andAgreement. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall notify the person providing such instrument of such non-conformance and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents Certificateholders and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to NIMs Insurer and take such further action as directed by the Transaction Documents.
(c) Certificateholders and the NIMs Insurer. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1Agreement, the Trustee shall not be liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not not, individually or as Trustee, be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the IssuerNIMs Insurer or the Holders in accordance with this Agreement relating to the time, the Servicer and/or a specified percentage method and place of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on Trustee, or exercising any money received by it except as trust or power conferred upon the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of under this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.Agreement. 132
Appears in 1 contract
Samples: Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Series 2006-6)
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform on their face to the requirements of this Indenture andAgreement. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall notify the person providing such instrument of such non-conformance and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents Certificateholders and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to NIMs Insurer and take such further action as directed by the Transaction Documents.
(c) Certificateholders and the NIMs Insurer. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1Agreement, the Trustee shall not be liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not not, individually or as Trustee, be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuer138 NIMs Insurer or the Holders in accordance with this Agreement relating to the time, the Servicer and/or a specified percentage method and place of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on Trustee, or exercising any money received by it except as trust or power conferred upon the Trustee may separately agree in writing with the Issuerunder this Agreement.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which or Rapid Amortization Event known to a Trust Officer of the Trustee has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconductmisconduct except as provided in Section 10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, fraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this Base Indenture or any of the Transaction other Related Documents, no provision of this Base Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is reasonable ground (as determined by the Trustee in its sole discretion) has reasonable grounds for believing that the repayment of such funds or adequate security or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Collateral, for insuring the Collateral or for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the holders of the requisite percentage of Noteholders under circumstances in which such direction is required or permitted by Notes, relating to the terms of this Base Indenturetime, a Series Supplement or other Transaction Document.
(o) The enumeration of method and place for conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be or exercising any trust or power conferred upon the imposition of a dutyTrustee, under the Indenture.
(pj) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recordings or filing or depositing or to any rerecording, refiling or redepositing of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.12(c) hereof; provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment premiums, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Quarterly Commitment Fee Amounts, any Post-ARD Contingent Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.11 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticeactual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture relating to the conduct or affecting the liability of or affording protection that in any way relates to the Trustee shall be is subject to the provisions clauses (A), (B) and (C) of this Section and to the provisions 10.01, regardless of the TIA (if this Indenture is required to be qualified under the TIA)whether such provision so expressly provides.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(iE) No provision of this Indenture shall be construed to will require the Trustee to perform, expend or accept risk its own funds or incur any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementliability.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lF) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall will not be liable for interest on any money received by it it, except as the Trustee may separately agree in writing with the IssuerCompany. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(qG) Every provision Unless a Responsible Officer of the Indenture Trustee has received notice from the Company that Additional Interest is owing on the Notes or any related document relating that the Company has elected to pay Special Interest on the conduct or affecting the liability of or affording protection to Notes, the Trustee shall be subject to the provisions of this Articlemay assume no Additional Interest or Special Interest, as applicable, is payable.
(rH) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee shall will not be responsible for or have any liability for the collection charged with knowledge of any Contracts document or Receivables or agreement other than this Indenture and the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 1 contract
Duties of the Trustee. (a) If an Amortization Event with respect to one or more Series of Default Notes has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the . The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, . However the Trustee shall examine the such certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content Indenture. Table of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.Contents
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.5.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from BTF, the Servicer Lessee or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance Noteholder or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction other Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Cendant Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has actual knowledge or received written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties (including fiduciary duties), covenants or obligations shall be read into this Indenture or any related document against the Trustee; and;
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon documents, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such documents, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the documents, certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents documents, certificates or opinions and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture caused by its own negligence, willful misconduct or bad faith, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documentsthis Indenture, including Section 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga)-(h) of Section 2.04 2.06 of the Servicing Agreement and the items referred to in the definition of “Monthly Remittance Condition” unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity reasonably satisfactory to the Trustee against such risk is not reasonably assured (as determined by the Trustee in its sole discretion) to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby xxxxxx agrees that it will, perform all of the express obligations and duties required of it under in the Servicing Agreement.
(g) Except for actions expressly authorized by this Indenture, the Trustee shall take no action reasonably likely to impair the interests of the Issuer in any asset of the Receivables Trust Estate now existing or hereafter created or to impair the value of any asset of the Receivables Trust Estate now existing or hereafter created.
(h) Except as provided in this Section 11.1(h), the Trustee shall have no power to vary the corpus of the Receivables Trust Estate including, without limitation, the power to (i) accept any substitute obligation for an asset of the Receivables Trust Estate assigned by the Issuer under the Granting Clause except for actions expressly authorized by this Indenture or (ii) release any assets from the Receivables Trust Estate, except in each case as permitted or contemplated by the Transaction Documents permitted under Sections 5.8, 10.19, 12.1, 15.1 or Article 5 and Section 2.03 or Section 2.04 of the Servicing Agreement.
(i) Subject to Section 11.2(k), the Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they substantially conform on their face to the requirements of this Indenture, to the extent this Indenture specifically sets forth any requirements for any such resolutions, certificates, statements, opinions, reports, documents, orders or other instruments and requires such requirements to be confirmed by the Trustee.
(j) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created hereinherein or to monitor the status of any such lien or security interest or the performance of any collateral, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm confirm, verify or verify review (unless expressly required by the terms of this Indenture or any other Transaction Document to which the Trustee is a party) the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables Trust Certificate or the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Receivables Trust’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of the Receivable Files under the Servicer Transaction Documents, Documents or (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Purchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(hk) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(il) No provision of this Indenture or any other Transaction Document shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementor under any other Transaction Document or any Person other than itself under any Transaction Document.
(jm) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(kn) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Receivables Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing duties, except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), provided, that the Trustee shall perform those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lo) The Notwithstanding any provision of this Indenture or any other Transaction Document to the contrary, the Trustee shall not be required to take notice action (including the sending of any notice) upon, or be deemed to have notice or knowledge of of, any Default or Default, Event of Default Default, event or information unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of a Trust Officer’s receipt of such notice, the Trustee shall have no duty to take any action to determine whether any such event, Default or Event of Default has occurred and may conclusively assume that there is no such event, Default or Event of DefaultDefault has occurred.
(mp) [Reserved]Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage regardless of the form of action.
(nq) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(or) The Trustee agrees to provide the Issuer with prompt written notice of any written repurchase demand it receives with respect to the Receivables underlying the Receivables Trust Certificate and to cooperate in good faith with any reasonable written request by the Issuer for information in the possession of the Trustee which is required in order to enable the Issuer to comply with the provisions of Rule 15Ga-1 under the Exchange Act as it relates to the Trustee or to the Trustee’s obligations under the Transaction Documents; provided that with respect to Rule 15Ga-1, only information in its possession need be provided, and the Trustee shall not be deemed a “securitizer” under the Exchange Act.
(s) The enumeration of any discretion, permissive right right, privilege or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty, unless and except to the extent expressly set forth herein.
(pt) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision Each of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee Trustee’s services hereunder shall be subject to conducted through the provisions Corporate Trust Services division of this ArticleXxxxx Fargo Bank, National Association (including, as applicable, any agents or affiliates utilized thereby).
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Conns Inc)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure 68 68 default by any Leasing Company or other Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Collateral Agreement, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer ARG, any Leasing Company Trustee, any Leasing Company or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected therebythereby or otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except . The Trustee may allow and credit to ARG interest agreed upon by ARG and the Trustee from time to time as otherwise required or may be permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenturelaw.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Autonation Inc /Fl)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeknowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction DocumentsSection 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga), (b) or (c) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from an Enhancement Provider, the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of Except for actions expressly authorized by this Indenture, the Trustee shall have take no duty (i) action reasonably likely to see to impair the interests of the Issuer in any recording, filing asset of the Trust Estate now existing or depositing of this Indenture or any agreement referred to herein, hereafter created or to see to impair the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part asset of the Issuer, (iii) to confirm Trust Estate now existing or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estatehereafter created.
(h) Subject to Section 11.1(dExcept as provided in this subsection 11.1(h), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice have no power to a vary the corpus of the Trust Officer thereof and receipt of appropriate records and informationEstate including, if anywithout limitation, the power to perform such obligation, duty or agreement in the manner so required.
(i) No provision accept any substitute obligation for an asset of the Trust Estate assigned by the Issuer under the Granting Clause except for actions expressly authorized by this Indenture shall be construed to require or (ii) release any assets from the Trustee to performTrust Estate, except in each case as permitted or accept any responsibility for contemplated by the performance ofTransaction Documents permitted under Sections 5.8, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this 10.19, 12.1, 12.4, 15.1 or Article 5 and Section 11.1 and the provisions 2.08 of the Servicing Agreement.
(ji) Subject The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is are specifically required to be qualified under the TIA), nothing contained herein shall be deemed furnished pursuant to authorize the Trustee to engage in any business operations or any activities other than those set forth in provision of this Indenture. Specifically, shall examine them to determine whether they substantially conform to the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose requirements of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Conns Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has actual knowledge or received written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties (including fiduciary duties), covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture caused by its own negligence, willful misconduct or bad faith, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction DocumentsSection 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga)-(h) of Section 2.04 2.06 of the Servicing Agreement and the items referred to in the definition of “Monthly Remittance Condition” unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby xxxxxx agrees that it will, perform all of the express obligations and duties required of it under in the Servicing Agreement.
(g) Except for actions expressly authorized by this Indenture, the Trustee shall take no action reasonably likely to impair the interests of the Issuer in any asset of the Receivables Trust Estate now existing or hereafter created or to impair the value of any asset of the Receivables Trust Estate now existing or hereafter created.
(h) Except as provided in this Section 11.1(h), the Trustee shall have no power to vary the corpus of the Receivables Trust Estate including, without limitation, the power to (i) accept any substitute obligation for an asset of the Receivables Trust Estate assigned by the Issuer under the Granting Clause except for actions expressly authorized by this Indenture or (ii) release any assets from the Receivables Trust Estate, except in each case as permitted or contemplated by the Transaction Documents permitted under Sections 5.8, 10.19, 12.1, 15.1 or Article 5 and Section 2.03 or Section 2.04 of the Servicing Agreement.
(i) Subject to Section 11.2(k) Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they substantially conform to the requirements of this Indenture, to the extent this Indenture specifically sets forth any requirements for any such resolutions, certificates, statements, opinions, reports, documents, orders or other instruments and requires such requirements to be confirmed by the Trustee.
(j) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm confirm, verify or verify review (unless expressly required by the terms of this Indenture or any other Transaction Document to which the Trustee is a party) the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables Trust Certificate or the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Receivables Trust’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of the Receivable Files under the Servicer Transaction Documents, Documents or (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(hk) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(il) No provision of this Indenture or any other Transaction Document shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementor under any other Transaction Document or any Person other than itself under any Transaction Document.
(jm) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(kn) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Receivables Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing duties, except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), provided, that the Trustee shall perform those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lo) The Notwithstanding any provision of this Indenture or any other Transaction Document to the contrary, the Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of a Trust Officer’s receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(mp) [Reserved]Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage regardless of the form of action.
(nq) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(or) The Trustee agrees to provide the Issuer with prompt written notice of any written repurchase demand it receives with respect to the Receivables underlying the Receivables Trust Certificate and to cooperate in good faith with any reasonable written request by the Issuer for information in the possession of the Trustee which is required in order to enable the Issuer to comply with the provisions of Rule 15Ga-1 under the Exchange Act as it relates to the Trustee or to the Trustee’s obligations under the Transaction Documents; provided that with respect to Rule 15Ga-1, only information in its possession need be provided, and the Trustee shall not be deemed a “securitizer” under the Exchange Act.
(s) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it , unless and except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Articleextent expressly set forth herein.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Conns Inc)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance will not be liable in respect of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, payment (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance correctness of amount, entitlement to receive or observance of any of other matters relating to payment) or notice effected by the Issuer’s, the Seller’s, the Parent’s Company or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement except in the manner or on the day required to be performed by the its capacity as Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice pursuant to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement ) or other Transaction Documentany records maintained by any co-Note Registrar with respect to the Notes.
(oI) The enumeration of any permissive right or power herein or in any other Transaction Document available to Under no circumstances will the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability its individual capacity for the collection of any Contracts or Receivables or obligations evidenced by the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 1 contract
Samples: Indenture (Cryoport, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has actual knowledge or received written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties (including fiduciary duties), covenants or obligations shall be read into this Indenture or any related document against the Trustee; and;
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon documents, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such documents, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the documents, certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents documents, certificates or opinions and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture caused by its own negligence, willful misconduct or bad faith, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documentsthis Indenture, including Section 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga)-(h) of Section 2.04 2.06 of the Servicing Agreement and the items referred to in the definition of “Monthly Remittance Condition” unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity reasonably satisfactory to the Trustee against such risk is not reasonably assured (as determined by the Trustee in its sole discretion) to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby xxxxxx agrees that it will, perform all of the express obligations and duties required of it under in the Servicing Agreement.
(g) Except for actions expressly authorized by this Indenture, the Trustee shall take no action reasonably likely to impair the interests of the Issuer in any asset of the Receivables Trust Estate now existing or hereafter created or to impair the value of any asset of the Receivables Trust Estate now existing or hereafter created.
(h) Except as provided in this Section 11.1(h), the Trustee shall have no power to vary the corpus of the Receivables Trust Estate including, without limitation, the power to (i) accept any substitute obligation for an asset of the Receivables Trust Estate assigned by the Issuer under the Granting Clause except for actions expressly authorized by this Indenture or (ii) release any assets from the Receivables Trust Estate, except in each case as permitted or contemplated by the Transaction Documents permitted under Sections 5.8, 10.19, 12.1, 15.1 or Article 5 and Section 2.03 or Section 2.04 of the Servicing Agreement.
(i) Subject to Section 11.2(k), the Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they substantially conform on their face to the requirements of this Indenture, to the extent this Indenture specifically sets forth any requirements for any such resolutions, certificates, statements, opinions, reports, documents, orders or other instruments and requires such requirements to be confirmed by the Trustee.
(j) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created hereinherein or to monitor the status of any such lien or security interest or the performance of any collateral, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm confirm, verify or verify review (unless expressly required by the terms of this Indenture or any other Transaction Document to which the Trustee is a party) the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables Trust Certificate or the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Receivables Trust’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of the Receivable Files under the Servicer Transaction Documents, Documents or (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Purchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(hk) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(il) No provision of this Indenture or any other Transaction Document shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementor under any other Transaction Document or any Person other than itself under any Transaction Document.
(jm) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(kn) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Receivables Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing duties, except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), provided, that the Trustee shall perform those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lo) The Notwithstanding any provision of this Indenture or any other Transaction Document to the contrary, the Trustee shall not be required to take notice action (including the sending of any notice) upon, or be deemed to have notice or knowledge of of, any Default or Default, Event of Default Default, event or information unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of a Trust Officer’s receipt of such notice, the Trustee shall have no duty to take any action to determine whether any such event, Default or Event of Default has occurred and may conclusively assume that there is no such event, Default or Event of DefaultDefault has occurred.
(mp) [Reserved]Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage regardless of the form of action.
(nq) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(or) The Trustee agrees to provide the Issuer with prompt written notice of any written repurchase demand it receives with respect to the Receivables underlying the Receivables Trust Certificate and to cooperate in good faith with any reasonable written request by the Issuer for information in the possession of the Trustee which is required in order to enable the Issuer to comply with the provisions of Rule 15Ga-1 under the Exchange Act as it relates to the Trustee or to the Trustee’s obligations under the Transaction Documents; provided that with respect to Rule 15Ga-1, only information in its possession need be provided, and the Trustee shall not be deemed a “securitizer” under the Exchange Act.
(s) The enumeration of any discretion, permissive right right, privilege or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it , unless and except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Articleextent expressly set forth herein.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Conns Inc)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Co-Issuers under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and providedprovided further, further however, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Co-Issuers under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Indenture.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event, or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any material liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or the G&C Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Collateral, for insuring the Collateral or for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or Control Party or the Controlling Class Representative, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a specified percentage security interest, or to see to the maintenance of Noteholders under circumstances any such recordings or filing or depositing or to any rerecording, refilling or redeposition of any thereof; provided, however, the Trustee shall be obligated to take all necessary actions in which such direction is connection with any filings delivered by the Manager or the Co-Issuers as required or permitted by the terms of the Indenture, (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Base Indenture, a Series Supplement Indenture believed by the Trustee to be genuine and to have been signed or other Transaction Documentpresented by the proper party or parties.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.14(c) hereof: provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any Senior Notes Monthly Post-ARD Contingent Interest, any reserve amounts, any make-whole premiums, any Class A-1 Senior Notes Administrative Expenses, any Class A-1 Senior Notes Aggregate Monthly Commitment Fees, or any interest or principal payable on, or any other amounts due with respect to, the Senior Subordinated Notes and the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that a Debt Service Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.13 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Samples: Base Indenture (Sonic Corp)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Responsible Officer has not received written notice; and provided, provided further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure Amortization Event, Custody Revocation Trigger Event, Limited Liquidation Event of Default, Liquidation Event of Default, any default by the Servicer referred to Lessor, ARG, the Servicer, any Lessee or other Person in clauses (a)-(g) the performance of its obligations under any Related Document or any other event described in Section 2.04 of the Servicing Agreement 8.10(a), unless a Trust Responsible Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer Servicer, any Lessee or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected therebythereby or otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Responsible Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents. The Trustee may allow and credit to the Issuer interest agreed upon by the Issuer and the Trustee from time to time as may be permitted by law.
(kg) Except In the event that each person acting as otherwise required Independent Director (as defined in the GP Limited Liability Company Agreement) shall resign or permitted by the TIA (if this Indenture is required refuse to be qualified admitted to the General Partner as the Special Member (as defined in the GP Limited Liability Company Agreement) under the TIA), nothing contained herein shall be deemed to authorize circumstances contemplated by Section 15(c) of the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. SpecificallyGP Limited Liability Company Agreement, the Trustee shall have no authority appoint a person meeting the requirements of an Independent Director to engage act as the Special Member in any business operations, acquire any assets other than those specifically included in accordance with Section 5(c) of the Trust Estate under this Indenture or otherwise vary GP Limited Liability Company Agreement. If the assets held by Trustee fails to so appoint a person to act as the Issuer. SimilarlySpecial Member within thirty (30) days of the occurrence of the event that caused Vanguard to cease to be a member of the General Partner, the Trustee shall provide written notice of such event to the Noteholders, and the Requisite Noteholders shall have no discretionary duties other than performing those ministerial acts set forth above necessary the right to accomplish select a person for the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed appoint to have notice or knowledge of any Default or Event of Default unless a Trust Officer act as the Special Member of the Trustee General Partner. The General Partner shall have received provide prompt written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed of any event that causes Vanguard to cease to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision member of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleGeneral Partner.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuerany Co-Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral AgreementAgreements. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities or Service Recipients.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement, financing change statement or continuation statement evidencing a Series Supplement security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Managereither or both Co- Issuers, either or both Managers, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof and Collateral Protection Advances to the extent the Servicer fails to make such Collateral Protection Advances; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Commitment Fees, any Post-ARD Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance or Collateral Protection Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance or Collateral Protection Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance or Collateral Protection Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance or Collateral Protection Advance made thereby (with its own funds) for so long as such Debt Service Advance or Collateral Protection Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance or Collateral Protection Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event known to a Trust Officer has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation shall be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, bad faith or willful misconductmisconduct except as provided in Section 10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent grossly negligent, acted in bad faith or engaged in willful misconduct in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith at the direction of the Control Party and/or a Noteholder under circumstances in accordance with a which such direction received is required or permitted by it pursuant to the terms of the this Base Indenture or the Transaction Documents;applicable law.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Preparation Event, Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any exercises of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Securitized Assets or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Securitized Assets or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Securitized Assets, for insuring the Securitized Assets or for the payment of Taxes, charges, assessments or Liens upon the Securitized Assets or otherwise as to the maintenance of the Securitized Assets. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under circumstances in which such direction is required the Indenture or permitted by the terms applicable law.
(j) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recordings or filing or depositing or to any rerecording, refiling or redepositing of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any Tax, assessment or other Transaction Documentgovernmental charge or any Lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.12(a)(iii) hereof; provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment premiums, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class
A-1 Quarterly Commitment Fee Amounts, any Post-ARD Contingent Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance or Collateral Protection Advance shall be required to be made hereunder by the Trustee if (i) the Trustee determines such Debt Service Advance or Collateral Protection Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance, (ii) on and after the 2021 Springing Amendments Implementation Date, it would, if made, constitute a Nonrecoverable Advance or an Advance Suspension Period is in effect or (iii) on and after the 2022 Springing Amendments Implementation Date, the Manager elects to eliminate the obligation of the Servicer and/or trustee to provide Advances upon satisfaction of the Rating Agency Condition. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance or Collateral Protection Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination shall be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon shall be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Advance made thereby (with its own funds) for or have so long as such Advance is outstanding. Such interest with respect to any liability for Advance made pursuant to this Section 10.1(k) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.11 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Samples: Base Indenture (Wendy's Co)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has actual knowledge or received written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties (including fiduciary duties), covenants or obligations shall be read into this Indenture or any related document against the Trustee; and;
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon documents, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such documents, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the documents, certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents documents, certificates or opinions and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture caused by its own negligence, willful misconduct or bad faith, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documentsthis Indenture, including Section 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga)-(h) of Section 2.04 2.06 of the Servicing Agreement and the items referred to in the definition of “Monthly Remittance Condition” unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity reasonably satisfactory to the Trustee against such risk is not reasonably assured (as determined by the Trustee in its sole discretion) to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby hxxxxx agrees that it will, perform all of the express obligations and duties required of it under in the Servicing Agreement.
(g) Except for actions expressly authorized by this Indenture, the Trustee shall take no action reasonably likely to impair the interests of the Issuer in any asset of the Receivables Trust Estate now existing or hereafter created or to impair the value of any asset of the Receivables Trust Estate now existing or hereafter created.
(h) Except as provided in this Section 11.1(h), the Trustee shall have no power to vary the corpus of the Receivables Trust Estate including, without limitation, the power to (i) accept any substitute obligation for an asset of the Receivables Trust Estate assigned by the Issuer under the Granting Clause except for actions expressly authorized by this Indenture or (ii) release any assets from the Receivables Trust Estate, except in each case as permitted or contemplated by the Transaction Documents permitted under Sections 5.8, 10.19, 12.1, 15.1 or Article 5 and Section 2.03 or Section 2.04 of the Servicing Agreement.
(i) Subject to Section 11.2(k), the Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they substantially conform on their face to the requirements of this Indenture, to the extent this Indenture specifically sets forth any requirements for any such resolutions, certificates, statements, opinions, reports, documents, orders or other instruments and requires such requirements to be confirmed by the Trustee.
(j) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created hereinherein or to monitor the status of any such lien or security interest or the performance of any collateral, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm confirm, verify or verify review (unless expressly required by the terms of this Indenture or any other Transaction Document to which the Trustee is a party) the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables Trust Certificate or the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Receivables Trust’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of the Receivable Files under the Servicer Transaction Documents, Documents or (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Purchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(hk) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(il) No provision of this Indenture or any other Transaction Document shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementor under any other Transaction Document or any Person other than itself under any Transaction Document.
(jm) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(kn) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Receivables Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing duties, except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), provided, that the Trustee shall perform those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lo) The Notwithstanding any provision of this Indenture or any other Transaction Document to the contrary, the Trustee shall not be required to take notice action (including the sending of any notice) upon, or be deemed to have notice or knowledge of of, any Default or Default, Event of Default Default, event or information unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of a Trust Officer’s receipt of such notice, the Trustee shall have no duty to take any action to determine whether any such event, Default or Event of Default has occurred and may conclusively assume that there is no such event, Default or Event of DefaultDefault has occurred.
(mp) [Reserved]Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage regardless of the form of action.
(nq) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(or) The Trustee agrees to provide the Issuer with prompt written notice of any written repurchase demand it receives with respect to the Receivables underlying the Receivables Trust Certificate and to cooperate in good faith with any reasonable written request by the Issuer for information in the possession of the Trustee which is required in order to enable the Issuer to comply with the provisions of Rule 15Ga-1 under the Exchange Act as it relates to the Trustee or to the Trustee’s obligations under the Transaction Documents; provided that with respect to Rule 15Ga-1, only information in its possession need be provided, and the Trustee shall not be deemed a “securitizer” under the Exchange Act.
(s) The enumeration of any discretion, permissive right right, privilege or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it , unless and except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Articleextent expressly set forth herein.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Conns Inc)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by any Co-Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Amendment No. 5 to the Amended and Restated Base Indenture (Driven Brands Holdings Inc.)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by any Co-Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreements. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities or Service Recipients.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement, financing change statement or continuation statement evidencing a Series Supplement security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of either or both Co-Issuers, either or both Managers, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof and Collateral Protection Advances to the extent the Servicer fails to make such Collateral Protection Advances; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed responsible for advancing any principal on the Senior Notes, any make-whole prepayment consideration, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Commitment Fees, any Post-ARD Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.; provided that, for the avoidance of doubt, the Trustee will not be required to make any Debt Service Advance in respect of any Class A-1 Notes Interest Adjustment Amount to the extent such Debt Service Advance would be the imposition duplicative of a dutyDebt Service Advance already made with respect to such Quarterly Calculation Date.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance or Collateral Protection Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance or Collateral Protection Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance or, on or after the 2021 Springing Amendments Implementation Date, if the Managers elect to eliminate the obligation of the Servicer and/or the Trustee to provide Advances upon satisfaction of the Rating Agency Condition or an Advance Suspension Period is then in effect. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance or Collateral Protection Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made. In no event shall the Trustee be required to make a Collateral Protection Advance, including a Requested Collateral Protection Advance, unless the Servicer has determined that such Collateral Protection Advance has been approved, the Servicer has subsequently failed to make such Collateral Protection Advance and the Trustee has not determined that such Collateral Protection Advance would be a “Nonrecoverable Advance” in accordance with the terms of this Indenture.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance or Collateral Protection Advance made thereby (with its own funds) for so long as such Debt Service Advance or Collateral Protection Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance or Collateral Protection Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture Amendment (Driven Brands Holdings Inc.)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities or Service Recipients.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Commitment Fees, any Post-ARD Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticeactual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and, if requested, provided, to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture relating to the conduct or affecting the liability of or affording protection that in any way relates to the Trustee shall be is subject to the provisions clauses (A), (B) and (C) of this Section and to the provisions 10.01, regardless of the TIA (if this Indenture is required to be qualified under the TIA)whether such provision so expressly provides.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(iE) No provision of this Indenture shall be construed to will require the Trustee to perform, expend or accept risk its own funds or incur any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementliability.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lF) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall will not be liable for interest on any money received by it it, except as the Trustee may separately agree in writing with the IssuerCompany. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(qG) Every provision Unless a Responsible Officer of the Indenture Trustee has received notice from the Company that Additional Interest is owing on the Notes or any related document relating that the Company has elected to pay Special Interest on the conduct or affecting the liability of or affording protection to Notes, the Trustee shall be subject to the provisions of this Articlemay assume no Additional Interest or Special Interest, as applicable, is payable.
(rH) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee shall will not be responsible for or have any liability for the collection charged with knowledge of any Contracts document or Receivables or agreement other than this Indenture and the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 1 contract
Samples: Indenture (LumiraDx LTD)
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; providedPROVIDED, howeverHOWEVER, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and providedPROVIDED, further FURTHER that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify mathematical calculations or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause CLAUSE (bB) of this Section 11.1;SECTION 10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;SECTION 9.3.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Leasing Company or other Person in the Servicer referred performance of its obligations under any Collateral Agreement or any agreement pursuant to in clauses a Series Supplement related to a Segregated Series of Notes (a)-(g) of Section 2.04 of the Servicing Agreement "Group-Specific Collateral Agreement"), unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer ARG II, any Leasing Company Trustee, any Leasing Company or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected therebythereby or otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(k) Except . The Trustee may allow and credit to ARG II interest agreed upon by ARG II and the Trustee from time to time as otherwise required or may be permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenturelaw.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Anc Rental Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Nextgen Healthcare, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;; 76 4140-8886-1733.4
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) 77 4140-8886-1733.4 the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in any portion of the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.. 4140-8886-1733.4
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Base Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Co-Issuers under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (ba) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a at the direction received of the Manager, the Co-Issuers, the Control Party and/or any Noteholder under the circumstances if such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;hereunder.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Flow Sweeping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the holders of the requisite percentage of Noteholders Noteholders, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power filing or depositing or to any rerecording, refiling or redeposition of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k) The Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.11(a) hereof; provided, however, that notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed obligated to be advance any principal on the imposition of a dutyNotes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amount, any Post-ARD Additional Interest, Class A-1 Notes Interest Adjustment Amount or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to Transaction Documents. Such interest will be calculated on the conduct or affecting the liability basis of or affording protection to the Trustee shall a 360-day year of twelve 30-day months and will be subject to the provisions of this Articledue and payable in arrears on each Weekly Allocation Date.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Yum Brands Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will, subject to the term hereof, be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Control Party Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform on their face to the requirements of this Base Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (ba) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, jurisdiction no longer subject to appeal or review that the Trustee was grossly negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a at the direction received by it pursuant to the terms of the Indenture or Manager, the Issuer, the Control Party and/or any Noteholder if direction from such Person is contemplated by the Transaction Documents;; provided that the Trustee shall have no responsibility for determining whether any such party is authorized to provide such direction hereunder or under any other Transaction Document.
(iv) the The Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Control Party Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Flow Sweeping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial liability or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. The Trustee may refuse to perform any duty or exercise any right or power unless it by the security afforded receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction DocumentsDocuments to which the Trustee is a party.
(kg) Except as otherwise required Whether or permitted by not therein expressly so provided, every provision of the TIA (if this Indenture is required and the other Transaction Documents relating to be qualified under the TIA)conduct of, nothing contained herein shall be deemed to authorize affecting the Trustee to engage in any business operations liability of, or any activities other than those set forth in this Indenture. Specificallyaffording protection to, the Trustee shall have no authority be subject to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose provisions of this IndentureSection 10.1.
(lh) The Trustee shall not be required to take notice responsible (i) for the existence, genuineness or be deemed to have notice or knowledge value of any Default or Event of Default unless a Trust Officer of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have received written notice thereof. In no duty to inquire as to the absence performance or observance of receipt any of such notice, the Trustee may conclusively assume that there is no Default terms of the Indenture or Event of Defaultthe other Transaction Documents by the Securitization Entities.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerControl Party, the Servicer and/or a specified Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power herein filing or in depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates, or other documents of the Manager, the Control Party, the Back-Up Manager or any other Person delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document available to believed by the Trustee shall not be construed to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties; provided that the Trustee may conclusively rely upon such documents and shall be fully protected in acting or refraining from acting thereon.
(pk) The Trustee shall not be liable for interest on special, indirect, consequential or punitive loss or damage of any money received by it except as kind whatsoever (including but not limited to lost profits), even if the Trustee may separately agree in writing with the Issuer.
(q) Every provision has been advised of the Indenture likelihood of such loss or any related document relating to damage and regardless of the conduct or affecting the liability form of or affording protection to the Trustee shall be subject to the provisions of this Articleaction.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Responsible Officer of the Trustee has written noticeknowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Responsible Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s 's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of negligence and bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Related Documents to which the Trustee is a party, provided, furtherhowever, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute re-compute any numeral information provided to it pursuant to the Transaction Related Documents.
(c) No Subject to 11.1, no provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or for the breach of the express terms of the Indenture, except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;this
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction DocumentsSection 10.15;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(ga), (b) or (c) of Section 2.04 10.01 of the Sale and Servicing Agreement unless a Trust Responsible Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Enhancement Provider, the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this IndentureIndenture and none of the provisions contained in this Indenture shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under the Sale and Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of the Sale and Servicing Agreement.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Sale and Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of Except for actions expressly authorized by this Indenture, the Trustee shall have take no duty (i) action reasonably likely to see to impair the interests of the Issuer in any recording, filing asset of the Trust Estate now existing or depositing of this Indenture or any agreement referred to herein, hereafter created or to see to impair the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part asset of the Issuer, (iii) to confirm Trust Estate now existing or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estatehereafter created.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth provided in this Indenture. Specificallysubsection 11.1(h), the Trustee shall have no authority power to engage in any business operations, acquire any assets other than those specifically included in vary the corpus of the Trust Estate including, without limitation, the power to (i) accept any substitute obligation for an asset of the Trust Estate initially assigned to the Issuer under the Granting Clause and Section 2.01 or Section 2.06 of the Sale and Servicing Agreement hereof except for actions expressly authorized by this Indenture Indenture, (ii) add any other investment, obligation or otherwise vary the assets held by security to the Issuer. Similarly, except for an addition permitted under Section 2.06 of the Sale and Servicing Agreement or (iii) withdraw from the Trust Estate any assets, except for a withdrawal permitted under 2.07 of the Sale and Servicing Agreement, Sections 5.8, 9.2, 12.1, 12.4 or Article 5 and subsections 2.04(e) or 2.04(f) or 2.04(g) of the Sale and Servicing Agreement.
(i) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Indenture, shall have no discretionary duties other than performing those ministerial acts set forth above necessary examine them to accomplish determine whether they substantially conform to the purpose requirements of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event actually known to a Trust Officer has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, bad faith or willful misconductmisconduct except as provided in Section 10.01(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.01.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent grossly negligent, acted in bad faith or engaged in willful misconduct in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith at the direction of the Manager, the Master Issuer, the Control Party and/or a Holder under circumstances in accordance with a which such direction received is required or permitted by it pursuant to the terms of the this Base Indenture or the Transaction Documents;applicable law.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Preparation Event, Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any exercises of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.03, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.01.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Securitized Assets or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Securitized Assets or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Securitized Assets, for insuring the Securitized Assets or for the payment of Taxes, charges, assessments or Liens upon the Securitized Assets or otherwise as to the maintenance of the Securitized Assets. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture, any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement the Indenture or other Transaction Documentapplicable law.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power herein filing or depositing or to any rerecording, refiling or redepositing of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.01(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.01(e), to see to the payment or discharge of any Tax, assessment or other Transaction Document available governmental charge or any Lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee shall not be construed pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.01, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.13(a)(iii) hereof; provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment premiums, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Quarterly Commitment Fee Amounts, any Post-ARD Contingent Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Holders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.01(k) shall be calculated on the collection basis of any Contracts or Receivables or a 360-day year of twelve 30-day months (which will be compounded monthly) and shall be payable out of Collections in accordance with the recoverability Priority of any amounts from an Obligor or any Payments pursuant to Section 5.12 hereof and the other Person owing any amounts as a result applicable provisions of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform on their face to the requirements of this Indenture andAgreement. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall notify the person providing such instrument of such non-conformance and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents Certificateholders and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to NIMs Insurer and take such further action as directed by the Transaction Documents.
(c) Certificateholders and the NIMs Insurer. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1Agreement, the Trustee shall not be liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not not, individually or as Trustee, be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuer134 NIMs Insurer or the Holders in accordance with this Agreement relating to the time, the Servicer and/or a specified percentage method and place of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on Trustee, or exercising any money received by it except as trust or power conferred upon the Trustee may separately agree in writing with the Issuerunder this Agreement.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates Series 2006-5)
Duties of the Trustee. (a) If an Amortization Event with respect to one or more Series of Default Notes has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe Series Supplement for such Series of Notes, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the . The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall be read into this the Indenture or any related document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this the Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, . However the Trustee shall examine the such certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.5.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Applicable Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from CPF, the Servicer Lessee or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance Noteholder or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Base Indenture or any of the Transaction Documentsother Applicable Related Documents for any Series of Notes, no provision of this the Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this the Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction DocumentsApplicable Related Documents for any Series of Notes.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance or an Advance Suspension Period is then in effect. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Yum Brands Inc)
Duties of the Trustee. (a) If The Trustee is hereby authorized and directed to execute, deliver and perform each of the Transaction Documents or any other related document, in each case, to which the Trustee is or is intended to be a party, and each Noteholder, by its acceptance thereof, agrees that the Trustee has no responsibility for the commercial terms of such Noteholder’s rights or the terms of any such Transaction Document related thereto.
(b) In case an Event of Default has occurred and is continuing, and of which or Rapid Amortization Event actually known to a Trust Officer of the Trustee has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party or the requisite percentage of Noteholders in accordance with the terms of this Base Indenture or another Transaction Document) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Back-Up Manager Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the preceding sentence Trustee shall not have no liability in connection with any action or inaction due to the effect acts or failure to act of insulating the Control Party or the Controlling Class Representative or the requisite percentage of Noteholders in connection with an Event of Default, a Rapid Amortization Event, a Manager Termination Event or a Back-Up Manager Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party, the Controlling Class Representative, or the requisite percentage of Noteholders. No provision of this Base Indenture may be construed to relieve the Trustee from liability arising out for its own negligent action, negligent failure to act, fraud, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order), except as provided in Section 10.1(d). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Trustee’s negligence Indenture, shall examine them to determine whether they conform on their face to the requirements of this Indenture; provided that the Trustee shall not be responsible for the accuracy or willful misconductcontent of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Issuers under the Indenture.
(bc) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform on their face to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(cd) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, fraud, bad faith or its own willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order), except that:
(i) this This clause (d) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of the Control Party or the holders of the requisite percentage of Noteholders in accordance with this Base Indenture relating to the terms of time, method and place for conducting any proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred upon the Transaction Documents;Trustee under this Base Indenture.
(iv) the The Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) Default, Event of Section 2.04 of the Servicing Agreement unless Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event or Potential Manager Termination Event or Back-Up Manager Termination Event until such time as a Trust Officer of the Trustee obtains actual knowledge shall have Actual Knowledge or have received written notice thereof. In the absence of such failure Actual Knowledge or receipt of such notice, the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(dv) the Trustee will not be liable for any action taken or omitted by the Trustee in good faith at the direction of the Control Party and/or the Noteholders of the requisite percentage of Notes under circumstances in which such direction is required or permitted by the terms of this Base Indenture.
(e) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction DocumentsBase Indenture, no provision of this Base Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability financial liability or otherwise in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is reasonable ground (as determined by the Trustee in its sole discretion) has reasonable grounds for believing that the repayment of such funds or adequate security or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. The Trustee may refuse to perform any duty or exercise any right or power unless it by the security afforded receives indemnity satisfactory to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct against any risk, loss, liability or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)expense.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jg) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kh) Except as otherwise required Whether or permitted by not therein expressly so provided, every provision of the TIA (if this Indenture is required and the other Transaction Documents relating to be qualified under the TIA)conduct of, nothing contained herein shall be deemed to authorize affecting the Trustee to engage in any business operations obligations or any activities other than those set forth in this Indenture. Specificallyliability of, or affording rights and protection to, the Trustee shall have no authority be subject to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose provisions of this IndentureSection 10.1.
(li) The Trustee shall not be required to take notice responsible for the existence, genuineness or be deemed to have notice or knowledge value of any Default or Event of Default unless a Trust Officer of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Collateral, for insuring the Collateral or for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have received written notice thereof. In no duty to inquire as to the absence performance or observance of receipt any of such notice, the Trustee may conclusively assume that there is no Default terms of the Indenture or Event of Defaultthe other Transaction Documents by the Securitization Entities.
(m) [Reserved].
(nj) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the Issuer, Control Party and/or the Servicer and/or a specified holders of the requisite percentage of Noteholders Notes under circumstances in which such direction is required or of permitted by the terms of this the Base Indenture, a Series Supplement or other Transaction Document.
(ok) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power herein filing or in depositing or to any rerecording, refiling or redepositing of any thereof; (ii) to see to any insurance, (iii) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any certificate, instrument, report, consent, order, document, statement, notice, request, approval, direction or other paper of the Manager, the Control Party, the Back-Up Manager or any other person delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document available to believed by the Trustee shall not be construed to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties.
(pl) The Trustee shall not be personally liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture special, indirect, consequential or any related document relating to the conduct punitive damages or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection loss of any Contracts kind whatsoever (including, but not limited to, lost profits) arising out of, in connection with or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts the performance of its duties under the Indenture (even if the Trustee has been advised of the likelihood of such loss or Receivablesdamage and regardless of the form of action).
(m) It is understood and agreed that the Trustee is executing each of the Third-Party Lease Consent/Assignments for the purposes of obtaining the benefits thereof and the rights thereunder, including after any default the right to receive notices of any Obligor default, and it shall have no obligations or any other such Personliabilities thereunder.
Appears in 1 contract
Samples: Base Indenture (SPRINT Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has actually received written noticenotice or, in certain cases, has actual knowledge of such Event of Default, the Trustee shall may exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith gross negligence or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates such Officer’s Certificates and opinions Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.111.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 11.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)11.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actually received written notice of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and, if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Booking Holdings Inc.)
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written noticeremains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, Agreement and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person's own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of . In case an Event of Default of which a Trust Officer has not received written notice; or other default by the Servicer or the Depositor hereunder shall occur and providedbe continuing, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements NIMs Insurer and the correctness of the opinions expressed thereinCertificateholders. The Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof that are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they conform on their face to the requirements of this Indenture andAgreement. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall notify the person providing such instrument of such non-conformance and if the instrument is not be responsible for corrected to its satisfaction, the accuracy or content of any of Trustee will provide notice thereof to the aforementioned documents Certificateholders and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to NIMs Insurer and take such further action as directed by the Transaction Documents.
(c) Certificateholders and the NIMs Insurer. No provision of this Indenture Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconduct except misfeasance or bad faith; provided, however, that:
(i) this clause does not limit prior to the effect occurrence of clause (b) an Event of Default, and after the curing of all such Events of Default that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Section 11.1Agreement, the Trustee shall not be liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the 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 Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not not, individually or as Trustee, be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or Trust Responsible Officers of the Trustee, Trustee unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable liable, individually or as Trustee, with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documentstaken, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken suffered or omitted to be taken by it in good faith in accordance with the direction of the IssuerNIMs Insurer or the Holders in accordance with this Agreement relating to the time, the Servicer and/or a specified percentage method and place of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of conducting any permissive right or power herein or in proceeding for any other Transaction Document remedy available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on Trustee, or exercising any money received by it except as trust or power conferred upon the Trustee may separately agree in writing with the Issuerunder this Agreement.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Series 2006-4)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Base Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (ba) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a at the direction received of the Manager, the Issuer, the Control Party and/or any Noteholder under the circumstances if such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;hereunder.
(iv) the The Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the holders of the requisite percentage of Noteholders Noteholders, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recordings or power filing or depositing or to any rerecording, refilling or redeposition of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 8.40); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k) The Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(a) hereof; provided, however, that notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed obligated to advance any principal on the Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amount, any Post-ARD Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes; provided further that, for the avoidance of doubt, the Trustee will not be required to make any Debt Service Advance in respect of any Class A-1 Notes Interest Adjustment Amount to the imposition extent such Debt Service Advance would be duplicative of a dutyDebt Service Advance already made with respect to such Quarterly Calculation Date.
(pii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance or if an Advance Suspension Period is then in effect. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to Transaction Documents. Such interest will be calculated on the conduct or affecting the liability basis of or affording protection to the Trustee shall a 360-day year of twelve 30-day months and will be subject to the provisions of this Articledue and payable in arrears on each Weekly Allocation Date.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his its own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;; 4866-9982-4145.5
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the this Indenture or the Transaction Documents;; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value amount of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section Article and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables Receivable is an Eligible Receivable (as defined in the applicable Purchase Agreement and/or the Representations and Warranties Agreement) or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’sSellers’, the ParentOportun Sponsor/Seller’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at 4866-9982-4145.5 any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreementhereunder.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders or Certificateholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the this Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.. 4866-9982-4145.5
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts Loans or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts Loans or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge of the same, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may may, without investigation, conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction DocumentsIndenture.
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every The Trustee will not be liable in its individual capacity for the obligations evidenced by the Notes. Whether or not therein provided, unless explicitly provided to the contrary, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Guess Inc)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer had actual knowledge of Defaultsuch event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Bloom Energy Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent action, its own negligent failure to act, negligence or its own willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.1Section 10.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Section 10.01.
(fH) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance will not be liable in respect of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, payment (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance correctness of amount, entitlement to receive or observance of any of other matters relating to payment) or notice effected by the Issuer’s, the Seller’s, the Parent’s Company or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement except in the manner or on the day required to be performed by the its capacity as Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice pursuant to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement ) or other Transaction Documentany records maintained by any co-Note Registrar with respect to the Notes.
(oI) The enumeration of any permissive right or power herein or in any other Transaction Document available to Under no circumstances will the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability its individual capacity for the collection of any Contracts or Receivables or obligations evidenced by the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such PersonNotes.
Appears in 1 contract
Samples: Indenture (Lucid Group, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which known to a Trust Officer of the Trustee has written noticeoccurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, exercise as a prudent man person would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer known to the Trustee:
(1) The duties of the Trustee has written notice:
(i) shall be determined solely by the express provisions of this Indenture, and the Trustee undertakes to need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee (but shall not be responsible for required to confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct misconduct, except that:
(i1) this clause This paragraph does not limit the effect of clause paragraph (b) or paragraph (e) of this Section 11.1Section;
(ii2) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers any other officer of the TrusteeTrustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby9.5.
(d) Notwithstanding anything Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the contrary contained in Trustee is subject to paragraphs (a), (b), (c) and (e) of this Indenture or any of the Transaction Documents, no Section 10.1.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powerspowers hereunder, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).it. 41
(f) The Trustee shall, and hereby agrees that shall not be liable for interest on or the investment of any money received by it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, except as the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to may agree with the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed Company. Money held in trust by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documentslaw.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Gatx Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a the direction received of the Manager, the Issuer, the Control Party or the requisite Noteholders under the circumstances if such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer of the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base the Indenture, a Series Supplement or other Transaction Document.
(oj) The enumeration Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any permissive right such recording, filing or power depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k) The Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(a) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed responsible for advancing any principal on the Senior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any post-renewal additional interest on the Class A-1 Notes, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes; provided that, for the avoidance of doubt, the Trustee will not be required to make any Debt Service Advance in respect of any Class A-1 Notes Interest Adjustment Amount to the extent such Debt Service Advance would be the imposition duplicative of a dutyDebt Service Advance already made with respect to such Quarterly Calculation Date.
(pii) Notwithstanding anything herein to the contrary, to the extent the Servicer fails to make an Advance to be made by it pursuant to the terms and conditions of the Servicing Agreement, no Advance shall be required to be made hereunder by the Trustee if (x) the Trustee determines such Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance, (y) an Advance Suspension Period is then in effect or (z) the Manager elects to eliminate the obligation of the Servicer or the Trustee to provide Advances upon satisfaction of the Rating Agency Condition. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Advance made thereby (with its own funds) for so long as such Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to Transaction Documents. Such interest will be calculated on the conduct or affecting the liability basis of or affording protection to the Trustee shall a 360-day year of twelve 30-day months and will be subject to the provisions of this Articledue and payable in arrears on each Weekly Allocation Date.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, however, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Co-Issuers under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Indenture.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any material liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenturethe Indenture or the Global G&C Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Collateral, for insuring the Collateral or for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified percentage Control Party or the Controlling Class Representative, relating to the time, method and place of Noteholders conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recordings or filing or depositing or to any rerecording, refilling or redeposition of any thereof (other than with respect to filings of the Manufacturing and Distribution Center Mortgages as and to the extent provided in Section 3.1(c)): (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other Transaction Documentgovernmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.12(c) hereof: provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any Senior Notes Monthly Post-ARD Contingent Interest, any reserve amounts, any make-whole premiums, any Class A-1 Senior Notes Administrative Expenses, any Class A-1 Senior Notes Aggregate Monthly Commitment Fees, or any interest or principal payable on, or any other amounts due with respect to, the Senior Subordinated Notes and the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance (or, on and after the Springing Amendments Implementation Date, an Advance Suspension Period is in effect). The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that a Debt Service Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.11 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Samples: Sixth Supplement to Amended and Restated Base Indenture (Dominos Pizza Inc)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuingThe Trustee shall represent the Bondholders in accordance with the Finance Documents, and of which a Trust Officer including, inter alia, holding the Transaction Security pursuant to the Security Documents on behalf of the Trustee has written noticeBondholders and, where relevant, enforcing the Trustee shall exercise such Transaction Security on behalf of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconductBondholders.
(b) Except during When acting in accordance with the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its partFinance Documents, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation is always acting with binding effect on behalf of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Bondholders. The Trustee shall examine carry out its duties under the certificates Finance Documents in a reasonable, proficient and opinions to determine whether or not they conform to the requirements of this Indenture andprofessional manner, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the with reasonable care and skill.
(c) The Trustee shall not be responsible for monitor the accuracy or content compliance by the Issuer with its obligations under these Terms and Conditions on the basis of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided made available to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed Finance Documents or received from a Bondholder. The Trustee is not obligated to relieve assess the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made Issuer's financial situation other than as expressly set out in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebythese Terms and Conditions.
(d) Notwithstanding anything The Trustee is entitled to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of delegate its duties hereunder or in to other professional parties, provided that such professional parties are selected with due care, but the exercise of any of its rights and powers, if there is reasonable ground (as determined by Agent shall remain liable for the Trustee in its sole discretion) for believing that the repayment actions of such funds or adequate indemnity against such risk is not reasonably assured to it by parties under the security afforded to it by the terms of this IndentureFinance Documents.
(e) Every provision of this Indenture relating The Trustee shall treat all Bondholders equally and, when acting pursuant to the conduct or affecting the liability of or affording protection Finance Documents, act with regard only to the Trustee interests of the Bondholders and shall not be subject required to have regard to the provisions interests or to act upon or comply with any direction or request of this Section and to any other person, other than as explicitly stated in the provisions of the TIA (if this Indenture is required to be qualified under the TIA)Finance Documents.
(f) The Trustee shallis entitled to engage external experts when carrying out its duties under the Finance Documents. The Issuer shall on demand by the Trustee pay all costs for external experts engaged after the occurrence of an Event of Default, and hereby agrees that it will, perform all or for the purpose of investigating or considering (i) an event which the Trustee reasonably believes is or may lead to an Event of Default or (ii) a matter relating to the Issuer which the Trustee reasonably believes may be detrimental to the interests of the obligations and duties required of it Bondholders under the Servicing AgreementFinance Documents. Any compensation for damages or other recoveries received by the Trustee from external experts engaged by it for the purpose of carrying out its duties under the Finance Documents shall be distributed in accordance with Clause 16 (Distribution of Proceeds).
(g) Without limiting Notwithstanding any other provision of the generality of this Section 11.1 and subject Finance Documents to the other provisions of this Indenturecontrary, the Trustee shall have no duty (i) is not obliged to see do or omit to any recording, filing do anything if it would or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance might in its reasonable opinion constitute a breach of any such recording law or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estateregulation.
(h) Subject to Section 11.1(d), If in the event that Trustee's reasonable opinion the Paying Agent cost, loss or the Transfer Agent and Registrar liability which it may incur (if other than including reasonable fees to the Trustee) shall fail to perform in complying with instructions of the Bondholders, or taking any obligationaction at its own initiative, duty or agreement in the manner or on the day required to will not be performed covered by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this IndentureIssuer, the Trustee shall be obligated may refrain from acting in accordance with such instructions, or taking such action, until it has received such funding or indemnities (or adequate Security has been provided therefore) as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so requiredit may reasonably require.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required give a notice to take notice or be deemed the Bondholders (i) before it ceases to have notice or knowledge perform its obligations under the Finance Documents by reason of the non payment by the Issuer of any Default fee or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available indemnity due to the Trustee shall not be construed to be under the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as Finance Documents or the Trustee may separately agree Agreement or (ii) if it refrains from acting for any reason described in writing with the Issuerparagraph (i) above.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Amendment and Restatement Agreement
Duties of the Trustee. (a) If an Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Base Indenture and any related documentin each applicable Related Document, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his or her own affairsaffairs and shall in all cases exercise such degree of care and skill in the best interest of the Noteholders; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that notice as provided in Section 10.2(o) (Rights of the Trustee) of this Base Indenture. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeAmortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Base Indenture and the Related Documents to which it is a party and no others, and no implied covenants or obligations shall be read into this Base Indenture or any related document such Related Documents against the Trustee; and
(ii) in In the absence of negligence, bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this IndentureBase Indenture or any applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Base Indenture and, if applicableor such Related Document (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the Transaction Documents delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including HVF III’s compliance with any of its covenants hereunder or thereunder, as the case may be (as to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation entitled to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsrely exclusively on Officer’s Certificates).
(c) No Subject to Section 10.1(a) (Duties of the Trustee) of this Base Indenture, no provision of this Base Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to actact or willful misconduct, or its own willful misconduct except provided, however, that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;10.1 (Duties of the Trustee).
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 9.3 (Other Remedies).
(iviii) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer HVF III, Hertz, or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyNoteholder.
(div) Notwithstanding anything Prior to occurrence of an Amortization Event with respect to any Series of Notes, and after curing all such Amortization Events which may have occurred, the contrary contained duties and obligations of the Trustee shall be determined solely by the express provisions of this Base Indenture, the Trustee shall be obligated to perform only such duties and obligations as are specifically set forth in this Base Indenture and no implied covenants or any of obligations shall be read into this Base Indenture against the Transaction Documents, no provision of this Indenture Trustee.
(v) The Trustee shall require the Trustee not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights and or powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it by it, and none of the security afforded provisions contained in this Base Indenture shall in any event require the Trustee to it by perform, or be responsible for the terms manner of this Indentureperformance of, any of the obligations of any Person under any of the Related Documents.
(ed) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Base Indenture, the Trustee shall be obligated as soon as practicable upon written notice to actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(je) Subject to Section 11.410.3 (Individual Rights of the Trustee) of this Base Indenture, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Related Documents.
(kf) Except as otherwise required Whether or permitted by the TIA (if this Indenture is required to be qualified under the TIA)not therein expressly so provided, nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms every provision of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
Section 10.1 (r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Hertz Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which known to a Trust Officer of the Trustee has written noticeoccurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, exercise as a prudent man person would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer known to the Trustee:
(1) The duties of the Trustee has written notice:
(i) shall be determined solely by the express provisions of this Indenture, and the Trustee undertakes to need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii2) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee (but shall not be responsible for required to confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct misconduct, except that:
(i1) this clause This paragraph does not limit the effect of clause paragraph (b) or paragraph (e) of this Section 11.1Section;
(ii2) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers any other officer of the TrusteeTrustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby6.5.
(d) Notwithstanding anything Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the contrary contained in Trustee is subject to paragraphs (a), (b), (c) and (e) of this Indenture or any of the Transaction Documents, no Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powerspowers hereunder, if there is it shall have reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)it.
(f) The Trustee shall, and hereby agrees that shall not be liable for interest on or the investment of any money received by it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, except as the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to may agree with the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed Company. Money held in trust by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documentslaw.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Gatx Corp)
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event of which a Trust Officer has Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party, the Controlling Class Representative or the requisite percentage of the Controlling Class Members or noteholders, as applicable, in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party, the Controlling Class Representative or the requisite percentage of the Controlling Class Members or Noteholders. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence gross negligence, bad faith or willful misconductmisconduct except as provided in Section 10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Control Party Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no other duties or implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own grossly negligent action, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent grossly negligent, acted in bad faith or engaged in willful misconduct in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith at the direction of the Manager, the Master Issuer, the Control Party and/or a Holder under circumstances in accordance with a which such direction received is required or permitted by it pursuant to the terms of the this Base Indenture or the Transaction Documents;applicable law.
(iv) the The Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Advance Funding Reserve Release Event, Warm Back-Up Management Trigger Event or Control Party Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any exercises of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Securitized Assets or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Securitized Assets or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Securitized Assets, for insuring the Securitized Assets or for the payment of Taxes, charges, assessments or Liens upon the Securitized Assets or otherwise as to the maintenance of the Securitized Assets. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerControl Party, the Servicer and/or a specified Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture, any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement the Indenture or other Transaction Documentapplicable law.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pj) The Trustee shall not be liable for interest on have no duty (i) to see to any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision recording, filing or depositing of the this Base Indenture or any related document relating agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection maintenance of any Contracts such recordings or Receivables filing or the recoverability depositing or to any rerecording, refiling or redepositing of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.thereof;
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event known to a Trust Officer has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, bad faith or willful misconductmisconduct except as provided in Section 10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent grossly negligent, acted in bad faith or engaged in willful misconduct in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith at the direction of the Control Party and/or a Noteholder under circumstances in accordance with a which such direction received is required or permitted by it pursuant to the terms of the this Base Indenture or the Transaction Documents;applicable law.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Preparation Event, Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any exercises of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Securitized Assets or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Securitized Assets or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Securitized Assets, for insuring the Securitized Assets or for the payment of Taxes, charges, assessments or Liens upon the Securitized Assets or otherwise as to the maintenance of the Securitized Assets. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under circumstances in which such direction is required the Indenture or permitted by the terms applicable law.
(j) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recordings or filing or depositing or to any rerecording, refiling or redepositing of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any Tax, assessment or other Transaction Documentgovernmental charge or any Lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(qi) Every provision of the Indenture or any related document relating Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.12(a)(iii) hereof; provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment premiums, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Quarterly Commitment Fee Amounts, any Post-ARD Contingent Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.1(k) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.11 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Samples: Base Indenture (Wendy's Co)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (Bloom Energy Corp)
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their its exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actionnegligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.110.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby7.06.
(dD) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no Each provision of this Indenture shall that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability liability.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the performance of any of its duties hereunder or Company. Money held in the exercise of any of its rights and powers, if there is reasonable ground (as determined trust by the Trustee in its sole discretion) for believing that need not be segregated from other funds, except to the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it extent required by the security afforded to it by the terms of this Indenturelaw.
(eG) Every Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)10.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved]Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(nK) The Trustee shall not be liable with respect the rights, privileges, protections, immunities and benefits given to any action taken or omitted the Trustee, including, without limitation, its right to be taken by it in good faith in accordance with the direction of the Issuerindemnified, are extended to, and shall be enforceable by, the Servicer and/or a specified percentage Trustee in each of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indentureits capacities hereunder (including, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except without limitation, as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any Note Agent), and each agent, custodian and other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personemployed to act hereunder.
Appears in 1 contract
Samples: Indenture (Varex Imaging Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment Judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders or Certificateholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. The Trustee hereby accepts the trusts imposed upon it by the Indenture and agrees to perform said trusts, but only upon and subject to the following express terms and conditions:
(a) If The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in the Indenture. In case an Event of Default has occurred and is continuing, and of (which a Trust Officer of the Trustee has written noticenot been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture and any related documentthe Indenture, and use the same degree of care and skill in their exercise, exercise as a reasonable and prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence affairs of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconductanother.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer The Trustee may execute any of the Trustee has written notice:trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees and shall not be responsible for the misconduct of negligence of any agent appointed with due care. Any expenses of hiring such agent shall be reimbursed by the Borrower.
(ic) The Trustee shall not be responsible for any recital herein or in the Trustee undertakes to perform only those duties that are specifically set forth in Bonds, for the validity of the execution by the Issuer of this Indenture and no othersMaster Indenture, and no implied covenants or obligations shall be read into this any Supplemental Indenture or any related document against instruments of further assurance, for the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation sufficiency of the contents thereof)security for the Bonds issued hereunder or intended to be secured hereby, as to or for the truth value of the statements and the correctness Trust Estate. The Trustee shall have no obligation to perform any of the opinions expressed therein, upon certificates or opinions furnished to duties of the Trustee and conforming to Issuer under the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error loss suffered in connection with any investment of judgment funds made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure instructions from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyIssuer in accordance with Section 5.8 hereof.
(d) Notwithstanding anything The Trustee shall not be accountable for the use of any Bonds delivered to the contrary contained in this Indenture or any Original Purchaser pursuant to the Indenture. The Trustee may become the Owner of Bonds with the Transaction Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its same rights and powers, which it would have if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this IndentureTrustee.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the The Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shallprotected in acting upon any notice, and hereby agrees that it willrequest, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indentureconsent, the Trustee shall have no duty (i) to see to any recordingcertificate, filing or depositing of this Indenture or any agreement referred to hereinorder, or to see to the maintenance of any such recording or filing or depositing or to any recordingaffidavit, refiling or redepositing of any thereof or to see to the validityletter, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment telegram or other governmental Lien owing with respect to, assessed paper or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee document which it in good faith believes to be genuine and correct and to have been signed or presented sent by the proper party Person or parties, Persons and the Trustee shall be under no duty to make any investigation as to any statement contained in any such document. Any action taken by the Trustee pursuant to the Indenture upon the request or Issuer or consent of any Person who at the time of making such request or giving such Issuer or consent is the Owner of any Bond shall be conclusive and binding upon any Bonds issued in place thereof.
(ivf) As to determine whether the existence or nonexistence of any Receivables is an Eligible Receivable fact or to inspect the Receivables at any time or ascertain or inquire as to the performance sufficiency or observance validity of any of the Issuer’sinstrument, the Seller’s, the Parent’s paper or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indentureproceeding, the Trustee shall be obligated entitled to rely upon a certificate signed by an Issuer Representative or such other Person as soon may be designated for such purpose by the Issuer, as practicable upon written notice to a Trust Officer thereof and receipt sufficient evidence of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so requiredfacts therein contained.
(ig) No provision The permissive right of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for do things enumerated in the performance of, the obligations of the Servicer hereunder until it Indenture shall have assumed such obligations in accordance with this Section 11.1 not be construed as a duty and the provisions Trustee shall not be answerable for other than its negligence or willful misconduct, including without limitation a breach of the Servicing Agreementfiduciary duty or gross negligence.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(lh) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default hereunder, except failure to pay the Debt Service on, or Redemption Price of, any Bond, unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt be specifically notified in writing of such noticeEvent of Default by the Issuer, the Trustee may conclusively assume that there is no Default Original Purchaser, the Owner of a Bond or Event the provider of Defaulta Senior Hedge Agreement.
(mi) [Reserved]All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust in the manner and for the purposes for which they were received and shall be segregated from all other funds held by the Trustee.
(nj) The Trustee shall not be liable with required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything in the Indenture to the contrary, the Trustee shall have the right, but shall not be required, to demand in respect of the delivery of any Bonds, the withdrawal of any cash, or any action taken or omitted to be taken by it in good faith in accordance with whatsoever within the direction purview of the IssuerIndenture, the Servicer and/or a specified percentage of Noteholders under circumstances any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in which such direction is required or permitted addition to that by the terms hereof required, as a condition of this Base Indenture, a Series Supplement or other Transaction Documentsuch action by the Trustee.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pl) The Trustee shall not be liable for interest permitted to resolve ambiguities in the Indenture or the Bonds in any manner that shall be deemed to be conclusively binding on Owners.
(m) Before taking any money received by it except as action or refraining from taking any action under the Indenture, the Trustee may separately agree in writing with require that the Issuer.
(q) Every provision of the Indenture or any related document relating indemnity satisfactory to the conduct or affecting the liability of or affording protection to the Trustee shall it be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability furnished for the collection reimbursement of all expenses to which it may be put and to protect it against all liability, including costs incurred in defending itself against any and all charges, claims, complaints, allegations, assertations, or demands of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as nature whatsoever, except liability which is adjudicated to a result of the Trustee’s gross negligence or willful misconduct in connection with any Contracts or Receivables, including after any default of any Obligor or any other such Personaction.
Appears in 1 contract
Samples: Master Indenture of Trust
Duties of the Trustee. (aA) If an Event of Default has occurred and is continuing, and continuing of which a Trust Responsible Officer of the Trustee has written noticenotice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture and any related documentIndenture, and use the same degree of care and skill in their exercise, its exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, provided that the Trustee shall will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have no offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability in connection with any action or inaction taken, or not taken, expense that might be incurred by it upon the deemed occurrence of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence in compliance with such request or willful misconductdirection.
(bB) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeDefault:
(i) the duties of the Trustee undertakes to will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith gross negligence or willful misconduct on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee. However, the Trustee shall will examine the certificates such Officer’s Certificates and opinions Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture and, if applicable, the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall (but need not be responsible for confirm or investigate the accuracy of mathematical calculations or content of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsother facts stated therein).
(cC) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability liabilities for its own negligent actiongross negligence or willful misconduct, its own negligent failure to act, or its own willful misconduct except that:
(i) this clause does paragraph will not limit the effect of clause (b) of this Section 11.111.01(B);
(ii) the Trustee shall will not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeResponsible Officer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 7.06; and
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected thereby.
(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder under this Indenture, or in the exercise of any of its rights and or powers, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) for believing grounds to believe that the repayment of such funds or adequate indemnity against such risk liability is not reasonably assured to it by the security afforded to it by the terms of this Indentureit.
(eD) Every Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 11.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights or powers.
(F) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of of, or affording protection to to, the Trustee shall will be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA)11.01.
(fH) The Trustee shallwill not be liable in respect of any payment (as to the correctness of amount, and hereby agrees that it will, perform all entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the obligations and duties required of it under the Servicing AgreementNotes.
(gI) Without limiting If any party fails to deliver a notice relating to an event the generality fact of this Section 11.1 and subject which, pursuant to the other provisions of this Indenture, the Trustee shall have no duty (i) requires notice to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see be sent to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is rely on its failure to receive such notice as reason to act as if no Default or Event such event occurred, unless a Responsible Officer of Defaultthe Trustee had actual knowledge of such event.
(mJ) [Reserved].
(n) The Under no circumstances will the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with its individual capacity for the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted obligations evidenced by the terms of this Base Indenture, a Series Supplement or other Transaction DocumentNotes.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Indenture (MultiPlan Corp)
Duties of the Trustee. (a) If an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or refraining from acting due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by any Co-Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written notice:
shall have Actual Knowledge: (i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
: (i) this clause (c) does not limit the effect of clause (ba) of this Section 11.1;
10.1; (ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was grossly negligent in ascertaining the pertinent facts;
; (iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;
this Base Indenture; and (iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Trust Officer of Cash Trapping Period until such time as the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreements. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer Actual Knowledge thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities or Service Recipients.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement, financing change statement or continuation statement evidencing a Series Supplement security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other Transaction Document.
(o) The enumeration governmental charge or any lien or encumbrance of any permissive right kind; or power herein (iv) to confirm or in verify the contents of any reports or certificates of either or both Co-Issuers, either or both Managers, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document available to believed by the Trustee shall not be construed to be genuine and to have been signed or presented by the imposition of a dutyproper party or parties.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default or Rapid Amortization Event known to a Trust Officer has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this the Indenture and any related documentthe other Related Documents, and use the same degree of care and skill in their exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, bad faith or willful misconductmisconduct except as provided in Section 10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Related Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this the Indenture or any related document other Related Document against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Related Document; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to actbad faith or willful misconduct, or its own willful misconduct except that:
(i) this This clause (c) does not limit the effect of clause (b) of this Section 11.1;10.1.
(ii) the The Trustee shall not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent grossly negligent, acted in bad faith or engaged in willful misconduct in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable in its individual capacity with respect to any action taken or omitted to be taken by it takes or omits to take in good faith at the direction of the Control Party and/or a Noteholder under circumstances in accordance with a which such direction received is required or permitted by it pursuant to the terms of the this Base Indenture or the Transaction Documents;applicable law.
(iv) the The Trustee shall not be charged with knowledge of any failure by Mortgage Preparation Event, Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event or Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee obtains actual knowledge of may conclusively assume that no such failure event has occurred or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the Transaction other Related Documents, no provision of this the Indenture or the other Related Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any exercises of its rights and powersor powers hereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Indenture or any of the other Related Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Related Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible for the existence, genuineness or value of any of the Securitized Assets or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Securitized Assets or any agreement or assignment contained therein, for the validity of the title of the Securitization Entities to the Securitized Assets, for insuring the Securitized Assets or for the payment of Taxes, charges, assessments or Liens upon the Securitized Assets or otherwise as to the maintenance of the Securitized Assets. Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Related Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the Holders of the requisite percentage of Noteholders Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under circumstances in which such direction is required the Indenture or permitted by the terms applicable law.
(j) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recordings or filing or depositing or to any rerecording, refiling or redepositing of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any Tax, assessment or other Transaction Documentgovernmental charge or any Lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(pk) The Trustee shall not be personally liable for interest on any money received by it except special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the Trustee may separately agree in writing with performance of its duties under the IssuerIndenture.
(ql) Every provision of the Indenture or any related document relating 112
(i) Notwithstanding anything to the conduct or affecting the liability of or affording protection to contrary in this Section 10.1, the Trustee shall be subject make Debt Service Advances to the provisions of this Articleextent and in the manner set forth in Section 5.12(a)(iii) hereof; provided, however, that notwithstanding anything herein or in any other Related Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment premiums, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Quarterly Commitment Fee Amounts, any Post-ARD Contingent Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(rii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall not be responsible entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for or have so long as such Debt Service Advance is outstanding. Such interest with respect to any liability for Debt Service Advance made pursuant to this Section 10.1(k) shall be payable out of Collections in accordance with the collection Priority of any Contracts or Receivables or Payments pursuant to Section 5.11 hereof and the recoverability other applicable provisions of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Related Documents.
Appears in 1 contract
Duties of the Trustee. (a) If an a Series 2013-G1 Amortization Event of Default has occurred and is continuing, and of which a Trust Officer of the Trustee has written notice, the Trustee shall exercise such of the rights and powers vested in it by this the Base Indenture and any related documentthis Series Supplement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; providedprovided however that, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an a Series 2013-G1 Amortization Event of Default of which a Trust Officer has not received written notice; and provided, further that the . The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written noticeSeries 2013-G1 Amortization Event:
(i) the The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture Series Supplement and no others, and no implied covenants or obligations shall be read into this Indenture or any related document Series Supplement against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this IndentureSeries Supplement; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this Indenture and, if applicableSeries Supplement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the Transaction Documents delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including HVF’s compliance with any of its covenants hereunder (as to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content of any of the aforementioned documents and the Trustee shall have no obligation entitled to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsrely exclusively on Officer’s Certificates).
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct misconduct, except that:
(i) this This clause does not limit the effect of clause (b) of this Section 11.1;12.1.
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proved that the Trustee was negligent in ascertaining the pertinent facts;.
(iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;Section 10.3.
(iv) the The Trustee shall not be charged with knowledge of any failure default by any Person in the Servicer referred to in clauses (a)-(g) performance of Section 2.04 of the Servicing Agreement its obligations under any Series 2013-G1 Related Document, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from HVF, Hertz or the Servicer Series 2013-G1 Noteholder (or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance its assign) or par value of the Notes of any Series adversely affected therebyotherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this Indenture Series Supplement or any of the Transaction Series 2013-G1 Related Documents, no provision of this Indenture Series Supplement shall require the Trustee to expend or risk its own funds or otherwise incur any liability (financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, otherwise) if there is are reasonable ground grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this IndentureSeries Supplement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations 10.3 of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(j) Subject to Section 11.4Base Indenture, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Transaction Series 2013-G1 Related Documents.
(kf) Except as otherwise required Whether or permitted by the TIA (if this Indenture is required to be qualified under the TIA)not therein expressly so provided, nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose every provision of this Indenture.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleSection 12.1.
(rg) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Series 2013-G1 Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the HVF II Requisite Group I Investors, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Series 2013-G1 Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Series 2013-G1 Collateral in its possession if the Series 2013-G1 Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Series 2013-G1 Collateral, by reason of the act or omission or any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.
(h) The Trustee shall not be responsible for the existence, genuineness or have value of any liability of the Series 2013-G1 Collateral or for the collection validity, perfection, priority or enforceability of the Liens in any of the Series 2013-G1 Collateral, whether impaired by operation of law or by reason of any Contracts action or Receivables omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Series 2013-G1 Collateral or any agreement or assignment contained therein, for the validity of the title of HVF to the Series 2013-G1 Collateral, for insuring the Series 2013-G1 Collateral or for the payment of taxes, charges, assessments or Liens upon the Series 2013-G1 Collateral or otherwise as to the maintenance of the Series 2013-G1 Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of this Series Supplement or the recoverability of any amounts from an Obligor Series 2013-G1 Related Documents by HVF or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Personthe Collateral Agent.
Appears in 1 contract
Samples: Amended and Restated Series 2013 G1 Supplement (Hertz Corp)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing, and or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has written noticeoccurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise such of the rights and powers vested in it by this Base Indenture and any related documentthe other Transaction Documents, and use the same degree of care and skill in their its exercise, as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs; provided, however, provided that the Trustee shall will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; and provided, further further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b) Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee has written noticeshall have Actual Knowledge:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no implied covenants or obligations shall be read into this the Indenture or any related document other Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof)rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenturethe Indenture and any other applicable Transaction Document; provided, howeverprovided that, in the case of any such certificates or opinions which by any provision hereof of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture and, if applicable, and shall promptly notify the Transaction Documents to which the Trustee is a party, provided, further, that the Trustee shall not be responsible for the accuracy or content party of any of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant to the Transaction Documentsnon-conformity.
(c) No provision of this Indenture shall The Trustee may not be construed to relieve the Trustee relieved from liability for its own negligent actionnegligence, its own negligent failure to actfraud, bad faith or its own willful misconduct misconduct, except that:
(i) this clause (c) does not limit the effect of clause (ba) of this Section 11.110.1;
(ii) the Trustee shall will not be personally liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or Trust Officers of the TrusteeOfficer, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall will not be liable in its individual capacity with respect to any action it takes or omits to take in good faith in accordance with a the direction received of the Control Party or the requisite Noteholders in accordance with this Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by it pursuant to the terms of the Indenture or the Transaction Documents;this Base Indenture; and
(iv) the Trustee shall not be charged with knowledge of any failure by Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the Servicer referred to in clauses (a)-(g) commencement and continuation of Section 2.04 of the Servicing Agreement unless a Cash Flow Sweeping Period until such time as a Trust Officer of the Trustee obtains actual knowledge shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such failure Actual Knowledge or receipt of such notice the Trustee receives written notice of may conclusively assume that no such failure from the Servicer event has occurred or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebyis continuing.
(d) Notwithstanding anything to the contrary contained in this the Indenture or any of the other Transaction Documents, no provision of this the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powersor powers hereunder or thereunder, if there is it has reasonable ground (as determined by the Trustee in its sole discretion) grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it by the terms of this Indentureagainst any risk, loss, liability or expense.
(e) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this Indenture, the Trustee shall have no duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Servicing Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occurs. The Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in In the event that the Paying Agent or the Transfer Agent and Note Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Note Registrar, as the case may be, under this the Indenture, the Trustee shall be obligated as soon as practicable upon written notice to Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision of this Indenture shall be construed to require the Trustee to perform, or accept any responsibility for the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 and the provisions of the Servicing Agreement.
(jf) Subject to Section 11.410.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law law or the Indenture or any of the other Transaction Documents.
(kg) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specificallyprovided herein, the Trustee shall have no authority duty to engage in inquire as to the performance or observance of any business operations, acquire any assets other than those specifically included in of the Trust Estate under this terms of the Indenture or otherwise vary the assets held other Transaction Documents by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureSecuritization Entities.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(ni) The Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the IssuerServicer, the Servicer and/or a specified Control Party, the Controlling Class Representative or the requisite percentage of Noteholders Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, under circumstances in which such direction is required the Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or permitted by the terms depositing of this Base IndentureIndenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, a Series Supplement or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction DocumentDocument believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(ok) The enumeration Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any permissive right or power the performance of its duties under the Indenture.
(a) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(c) hereof; provided that, notwithstanding anything herein or in any other Transaction Document available to the contrary, the Trustee shall will not be construed to be responsible for advancing any principal on the imposition of a dutySenior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes.
(pi) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(ii) The Trustee shall not be liable entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest on with respect to any money received by it except as the Trustee may separately agree Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in writing accordance with the Issuer.
(q) Every provision Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ArticleTransaction Documents.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Base Indenture (Wingstop Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred Except for records dealing solely with the Trust and is continuingits investments and disbursements, which shall be maintained by the Trustee, Employer shall maintain all records contemplated by the Plan.
(b) Employer shall furnish to the Trustee all the information necessary to determine the benefits payable to or with respect to each Member in the Plan, including any benefits payable after a Member's death. Employer shall from time to time, and of which a Trust Officer at least annually, and promptly upon the request of the Trustee has written noticefurnish updated information to the Trustee. In the event Employer refuses or neglects to provide any updated information as contemplated herein, the Trustee shall exercise such of rely upon the rights and powers vested in most recent information furnished to it by this Indenture and any related document, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairsEmployer; provided, however, that the Trustee shall have no liability in connection with any action on or inaction taken, or not taken, by it upon the deemed occurrence after a Change of an Event of Default of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default of which a Trust Officer of the Trustee has written notice:
(i) the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or any related document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely (without independent confirmation, verification, inquiry or investigation of the contents thereof), as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the TrusteeControl, the Trustee shall examine rely in its discretion upon (1) information furnished to it by the certificates and opinions Employer prior to determine whether a Change of Control, (2) information furnished to it by Employer on or after a Change of Control and/or (3) any information received by it from a Member or designated beneficiary unless the recipient actually knows that any such information is false. The Trustee has not they conform responsibility to verify information provided to them by Employer or any Member or designated beneficiary.
(c) Upon proper notification from Employer prior to a Change of Control or upon an independent determination by the requirements Trustee on or after a Change of this Indenture Control (based on such information as the Trustee shall be entitled to rely upon pursuant to Subsection (b) above), when, in the opinion of Employer prior to a Change of Control or Trustee on or after a Change of Control, as applicable, a Member's benefits under the Plan have become payable, Employer or Trustee, as applicable, shall notify the Member or the beneficiary of a deceased Member and, if applicable, the Transaction Documents Trustee. Such notice shall include the amount of such benefits, the terms of payment, the amount of any taxes required to which be withheld from such amount, and the Trustee is name, address and social security number of the recipient. Upon the receipt of a partynotification or after making its determination, providedas applicable, further, that the Trustee shall not be responsible for commence distributions from the accuracy or content of any assets of the aforementioned documents and the Trustee shall have no obligation to verify or recompute any numeral information provided to it pursuant Trust in accordance therewith to the Transaction Documents.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, person or its own willful misconduct except that:
(i) this clause does not limit the effect of clause (b) of this Section 11.1;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officer or Trust Officers of the Trustee, unless it is conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the terms of the Indenture or the Transaction Documents;
(iv) the Trustee shall not be charged with knowledge of any failure by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate outstanding principal balance or par value of the Notes of any Series adversely affected therebypersons so indicated.
(d) Notwithstanding anything Employer shall have full responsibility for the payment of all taxes of any nature levied, assessed or imposed upon the Assets of the Trust, including the payment of all withholding taxes to the contrary contained in this Indenture or any of the Transaction Documents, no provision of this Indenture appropriate taxing authority and shall require provide the Trustee with such information as necessary to expend allow it to furnish each Member or risk its own funds or otherwise incur any financial liability in beneficiary with the performance of any of its duties hereunder or in appropriate tax information form evidencing such payment and the exercise of any of its rights and powers, if there is reasonable ground (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it by the security afforded to it by the terms of this Indentureamount thereof.
(e) Every provision Prior to a Change of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA (if this Indenture is required to be qualified under the TIA).
(f) The Trustee shall, and hereby agrees that it will, perform all of the obligations and duties required of it under the Servicing Agreement.
(g) Without limiting the generality of this Section 11.1 and subject to the other provisions of this IndentureControl, the Trustee shall have no duty responsibility for determining whether any Member or beneficiary has died or whether a Member's rights under the terms of the Plan have been forfeited and shall be entitled to rely upon information furnished by Employer. On or after a Change of Control, the Trustee shall determine whether a Member's benefit shall be deemed forfeited or whether a Member or beneficiary has died based on information supplied under Subsection (ib) hereof; provided, however, that a certified death certificate received by the Trustee shall be conclusive evidence of the death of any person regardless of the source of such certificate.
(f) Nothing provided in this Trust Agreement shall relieve Employer of its liabilities to see to any recording, filing or depositing of this Indenture or any agreement referred to herein, or to see pay the benefits provided under the Plan except to the maintenance extent such liabilities are met by application of the assets of the Trust.
(g) In discharging its duties and responsibilities under this Section 10, the Employer acknowledges that the Trustee may delegate such obligations to one or more independent third parties. The fees and expenses incurred by reason of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien or security interest created herein, (ii) to see to the payment or discharge of any tax, assessment or other governmental Lien owing with respect to, assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any reports or certificates delivered to delegation effected by the Trustee pursuant to this Indenture or Subsection (g) shall be paid by the Servicing Agreement believed Employer, but, if not so paid, may be paid by the Trustee to be genuine and to have been signed or presented by from the proper party or parties, (iv) to determine whether any Receivables is an Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of the Receivable Files under the Servicer Transaction Documents, (v) the acquisition or maintenance of any insurance, or (vi) to determine when a Repurchase Event occursTrust. The Trustee shall be authorized provisions of this Subsection (g) are supplemental to, but shall and are in no event have way in derogation of, any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Trust Estate.
(h) Subject to Section 11.1(d), in the event that the Paying Agent or the Transfer Agent and Registrar (if other than the Trustee) shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(i) No provision provisions of this Indenture shall be construed to require Agreement concerning any authority of the Trustee to perform, or accept any responsibility for delegate the performance of, the obligations of the Servicer hereunder until it shall have assumed such obligations in accordance with this Section 11.1 its other duties and the provisions responsibilities or any other authority of the Servicing Agreement.
(j) Subject to Section 11.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by Law or the Transaction Documents.
(k) Except as otherwise required or permitted by the TIA (if this Indenture is required to be qualified under the TIA), nothing contained herein shall be deemed to authorize the Trustee to engage in any business operations or any activities other than those set forth in this Indenture. Specifically, pay fees and expenses from the Trustee shall have no authority to engage in any business operations, acquire any assets other than those specifically included in the Trust Estate under this Indenture or otherwise vary the assets held by the Issuer. Similarly, the Trustee shall have no discretionary duties other than performing those ministerial acts set forth above necessary to accomplish the purpose of this IndentureTrust.
(l) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received written notice thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default.
(m) [Reserved].
(n) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the Servicer and/or a specified percentage of Noteholders under circumstances in which such direction is required or permitted by the terms of this Base Indenture, a Series Supplement or other Transaction Document.
(o) The enumeration of any permissive right or power herein or in any other Transaction Document available to the Trustee shall not be construed to be the imposition of a duty.
(p) The Trustee shall not be liable for interest on any money received by it except as the Trustee may separately agree in writing with the Issuer.
(q) Every provision of the Indenture or any related document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article.
(r) The Trustee shall not be responsible for or have any liability for the collection of any Contracts or Receivables or the recoverability of any amounts from an Obligor or any other Person owing any amounts as a result of any Contracts or Receivables, including after any default of any Obligor or any other such Person.
Appears in 1 contract
Samples: Deferred Compensation Plan Trust Agreement (Ruby Tuesday Inc)
