Protection and Rights of the Trustee. The Trustee will be protected and will incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificates, statement, affidavit, voucher, bond, requisition or other paper or document which it will in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the Lease, and the Trustee will be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will not be bound to recognize any person as an Owner of the Certificates or to take any action at his request unless such Certificates will be deposited with the Trustee or satisfactory evidence of the ownership of such Certificates will be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the opinion of such counsel or accountants will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, (b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, in the administration of its duties under this Indenture, the Trustee will deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will be deemed to be conclusively proved and established by a Certificates of the Lessee Representative or the Lessor Representative and such Certificates will be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as may seem reasonable to it. The Trustee may become the Owner of the Certificates with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor with the same rights it would have if it were not the Trustee; and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the Certificates, whether or not such committee will represent the Owners of the majority in principal amount of the Certificates then Outstanding.
Appears in 1 contract
Samples: Trust Indenture
Protection and Rights of the Trustee. The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinionaffidavit, bond, certificate, consent, notice, request, requisition, resolution, noticestatement, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificates, statement, affidavit, voucher, bond, requisition waiver or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, including, but may not limited to, the legality of any investment in which Trustee is instructed to invest, but may, in the absence of bad faith on its part, accept and rely upon the same as conclusive evidence of the o f t he truth and accuracy of o f such statements. The T he Trustee will not be bound to recognize any person as an Owner of the Certificates or to take any action at his request unless such Certificates will be deposited with the Trustee or satisfactory evidence of the ownership of such Certificates will be furnished to the Trustee. The Trustee may m ay consult with counsel, who may be counsel to the Lessee or the LessorCity, and accountants with regard to legal or accounting questions, questions and the opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it the Trustee hereunder in good faith in reliance thereonaccordance therewith. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, (b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will ), in the absence of bad faith on its part, shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee City Representative or the Lessor Corporation Representative and such Certificates will certificate shall be full warranty to the Trustee Trustee, in the absence of bad faith on its part, for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to itthe Trustee. The Trustee may be or become the Owner of the Certificates with the same rights it would have if it were not Trustee; may acquire and dispose of other any bonds or other evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; Trustee and may act as a depository depositary for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of the Owners of the Certificates, whether or not such committee will shall represent the Owners of the majority in aggregate principal amount of the Certificates then Outstanding. The Trustee shall not be answerable for the exercise of any discretion or power under this Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own negligence or willful misconduct hereunder. The Trustee shall not be deemed to have knowledge of any Event of Default hereunder unless and until a Responsible Officer shall have actual knowledge thereof, or shall have received written notice thereof, at its Principal Office. Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Certificates, or as to the existence of an Event of Default thereunder. The Trustee shall have no responsibility with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Certificates. The Trustee is authorized and directed to execute in its capacity as Trustee the Assignment Agreement. The immunities extended to the Trustee also extend to its directors, officers, employees and agents. The Trustee shall not be liable for any action taken or not taken by it in accordance with the direction of the Owners of a majority (or other percentage provided for herein) in aggregate principal amount Certificates outstanding relating to the exercise of any right, power or remedy available to the Trustee. The permissive right of the Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee.
(a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates or to take any action at his the request of the Owners unless such Certificates will the Obligations shall be deposited with the Trustee or satisfactory evidence of the ownership of such Certificates will be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the advice or opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor City Representative and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to it. reasonable.
(c) The Trustee may become the Owner of the Certificates with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; Trustee and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesOwners, whether or not such committee will shall represent the Owners of the majority Obligations.
(d) The recitals, statements and representations by the City contained in principal amount this Trust Agreement, the Purchase Agreement or the Obligations shall be taken and construed as made by and on the part of the Certificates then OutstandingCity and not by the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof.
(e) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Trust Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own willful misconduct or negligence.
(f) No provision in this Trust Agreement shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability (including, without limitation, any and all environmental liability) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(g) The Trustee shall not be accountable for the use or application by the City or any other party of any funds which the Trustee has released in accordance with the terms of this Trust Agreement.
(h) The Trustee makes no representation or warranty, express or implied, as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose or fitness for the use contemplated by the City of the Projects. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Purchase Agreement or this Trust Agreement for the acquisition of the Projects.
(i) Notwithstanding any provision in this Trust Agreement or the Purchase Agreement to the contrary, the Trustee shall not be required to take notice or be deemed to have notice of an Event of Default, except an Event of Default under Section 9(a)(i)(A) of the Purchase Agreement, unless a Responsible Officer of the Trustee has actual notice thereof or is specifically notified in writing of such default by the City or the Owners of the Obligations.
(j) The Trustee shall accept and act upon instructions of directions pursuant to this Trust Agreement sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the City elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(k) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee. (a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe (i) to be genuine and to have been passed or signed by the proper board or person or (ii) to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates any Obligation or to take any action at his request unless such Certificates will Obligation shall be deposited with the Trustee or and satisfactory evidence of the ownership of such Certificates will Obligation shall be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the LessorCity, and accountants with regard to legal or accounting questions, and the opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor Representative Authorized City Representative, and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may seem reasonable to it. deem reasonable.
(c) The Trustee may (i) become the Owner of the Certificates Obligations with the same rights it would have if it were not Trustee; may , (ii) acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; , and may (iii) act as a depository for for, and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesObligations, whether or not such committee will shall represent the Owners of the majority in principal amount of the Certificates Obligations then Outstanding.
(d) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Trust Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own willful misconduct or negligence.
(e) No provision in this Trust Agreement shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability (including, without limitation, any and all environmental liability) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(f) The Trustee shall not be accountable for the use or application by the City or any other party of any funds which the Trustee has released in accordance with the terms of this Trust Agreement.
(g) The Trustee makes no representation or warranty, express or implied, as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose or fitness for the use contemplated by the City of the 2020 Project. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Purchase Agreement or this Trust Agreement for the existence, furnishing or use of the 2020 Project.
(h) Notwithstanding any provision in this Trust Agreement or the Purchase Agreement to the contrary, the Trustee shall not be required to take notice or be deemed to have notice of an Event of Default, except an Event of Default under Section 15(a)(1) of the Purchase Agreement or Section 12.2(a)(i) hereof, unless the Trustee has actual notice thereof or is specifically notified in writing of such default by the City or the Owners of at least twenty-five percent (25%) in aggregate principal amount of the Obligations then Outstanding.
(i) The Trustee agrees to accept and act upon instructions or directions pursuant to this Trust Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the City elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(j) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee. (a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates or to take any action at his the request of the Owners unless such Certificates will the Obligations shall be deposited with the Trustee or satisfactory evidence of the ownership of such Certificates will be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the advice or opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor City Representative and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to it. reasonable.
(c) The Trustee may become the Owner of the Certificates with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; Trustee and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesOwners, whether or not such committee will shall represent the Owners of the majority Obligations.
(d) The recitals, statements and representations by the City contained in principal amount this Trust Agreement, the Purchase Agreement or the Obligations shall be taken and construed as made by and on the part of the Certificates then OutstandingCity and not by the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof.
(e) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Trust Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own willful misconduct or negligence.
(f) No provision in this Trust Agreement shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability (including, without limitation, any and all environmental liability) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(g) The Trustee shall not be accountable for the use or application by the City or any other party of any funds which the Trustee has released in accordance with the terms of this Trust Agreement.
(h) The Trustee makes no representation or warranty, express or implied, as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose or fitness for the use contemplated by the City of the Project. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Purchase Agreement or this Trust Agreement for the acquisition of the Project.
(i) Notwithstanding any provision in this Trust Agreement or the Purchase Agreement to the contrary, the Trustee shall not be required to take notice or be deemed to have notice of an Event of Default, except an Event of Default under Section 9(a)(i)(A) of the Purchase Agreement, unless a Responsible Officer of the Trustee has actual notice thereof or is specifically notified in writing of such default by the City or the Owners of the Obligations.
(j) The Trustee shall accept and act upon instructions of directions pursuant to this Trust Agreement sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the City elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(k) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee. (a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates any Obligation or to take any action at his request unless such Certificates will Obligation shall be deposited with the Trustee or and satisfactory evidence of the ownership of such Certificates will Obligation shall be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the advice or opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor City Representative and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to it. reasonable.
(c) The Trustee may become the Owner of the Certificates Obligations with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; Trustee and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesObligations, whether or not such committee will shall represent the Owners of the majority in principal amount of the Certificates Obligations then Outstanding.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee. The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinionaffidavit, bond, certificate, consent, notice, request, requisition, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificates, statement, affidavit, voucher, bond, requisition waiver or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, including, but may not limited to, the legality of any investment in which Trustee is instructed to invest, but may, in the absence of negligence or bad faith on its part, accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will not be bound to recognize any person as an Owner of the Certificates or to take any action at his request unless such Certificates will be deposited with the Trustee or satisfactory evidence of the ownership of such Certificates will be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the LessorLessee, and accountants with regard to legal or accounting questions, questions and the written opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it the Trustee hereunder in good faith in reliance thereonaccordance therewith. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, (b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will ), in the absence of negligence or bad faith on its part, shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative Lessee’s Authorized Signatory or the Lessor Representative and such Certificates will certificate shall be full warranty to the Trustee Trustee, in the absence of negligence or bad faith on its part, for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem deem reasonable to itthe Trustee. The Trustee may be or become the Owner of the Certificates Certificateholder with the same rights it would have if it were not Trustee; may acquire and dispose of other any bonds or other evidence of indebtedness of the Lessee or the Lessor with the same rights it would have if it were not the Trustee; Trustee and may act as a depository depositary for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners the Certificateholder. The Trustee shall not be deemed to have knowledge of any Event of Default hereunder unless and until a Responsible Officer shall have actual knowledge thereof, or shall have received written notice thereof, at its Principal Corporate Trust Office. Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Certificates, whether or not such committee will represent as to the Owners existence of an Event of Default thereunder. The permissive right of the majority Trustee to do things enumerated in principal amount this Trust Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its gross negligence or willful default. The Trustee shall not be required to give any bond or surety in respect of the Certificates then Outstandingexecution of the said trusts and powers or otherwise in respect of the premises. In acting or omitting to act pursuant to the Lease, the Site Lease, or any other agreement executed in connection hereof or thereof to which the Trustee is a party, the Trustee shall be entitled to all of the rights, immunities and indemnities accorded to it under this Trust Agreement, including, but not limited to, this Article VIII.
Appears in 1 contract
Samples: Lease Agreement
Protection and Rights of the Trustee. (a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates any Obligation or to take any action at his request unless such Certificates will Obligation shall be deposited with the Trustee or and satisfactory evidence of the ownership of such Certificates will Obligation shall be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the advice or opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor Town Representative and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to it. reasonable.
(c) The Trustee may become the Owner of the Certificates Obligations with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor Town with the same rights it would have if it were not the Trustee; Trustee and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesObligations, whether or not such committee will shall represent the Owners of the majority in principa l amount of the Obligations then Outstanding.
(d) The recitals, statements and representations by the Town contained in this Trust Agreement, the Purchase Agreement or the Obligations shall be taken and construed as made by and on the part of the Town and not by the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof.
(e) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Trust Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own willful misconduct or negligence.
(f) No provision in this Trust Agreement shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability (including, without limitat io n, any and all environmental liability) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(g) The Trustee shall not be accountable for the use or application by the Town or any other party of any funds which the Trustee has released in accordance with the terms of this Trust Agreement.
(h) The Trustee makes no representation or warranty, express or implied, as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose or fitness for the use contemplated by the Town of the Projects. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Purchase Agreement or this Trust Agreement for the Projects.
(i) Notwithstanding any provision in this Trust Agreement or the Purchase Agreement to the contrary, the Trustee shall not be required to take notice or be deemed to have notice of an Event of Default, except an Event of Default under Section 9(a)(i)(A) of the Purchase Agreement, unless a Responsible Officer of the Trustee has actual notice thereof or is specifically notified in writing of such default by the Town or the Owners of at least twenty- five percent (25%) in aggregate principal amount of the Certificates all Obligations then Outstanding.
(j) The Trustee shall accept and act upon instructions of directions pursuant to this Trust Agreement sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Town elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Town agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(k) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
Appears in 1 contract
Samples: Trust Agreement
Protection and Rights of the Trustee. (a) The Trustee will shall be protected and will shall incur no liability in acting or proceeding in good faith upon any opinion, resolution, notice, telegram, instructions, facsimile transmission, electronic mail request, consent, waiver, Certificatescertificates, statementstatements, affidavit, voucher, bond, requisition or other paper or document which it will shall in good faith believe to be genuine and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the LeaseTrust Agreement, and the Trustee will shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements. The Trustee will shall not be bound to recognize any person as an Owner of the Certificates any Obligation or to take any action at his request unless such Certificates will Obligation shall be deposited with the Trustee or and satisfactory evidence of the ownership of such Certificates will Obligation shall be furnished to the Trustee. The Trustee may consult with counsel, who may be counsel to the Lessee or the Lessor, and accountants with regard to legal or accounting questions, and the advice or opinion of such counsel or accountants will shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith in reliance thereon. The Trustee will not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its gross negligence or willful misconduct. The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or directions pursuant to this Indenture provided, however, that: (a) subsequent to such facsimile transmission of written instructions and/or directions, the Lessor or Lessee, as applicable, will forthwith send to the Trustee, the originally executed instructions and/or directions, accordance therewith.
(b) such originally executed instructions and/or directions will be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Lessor and Lessee will, provide on the Closing Date, a current incumbency Certificates containing the specimen signature of such designated person and updates of such incumbency Certificates, as needed. Whenever, Whenever in the administration of its duties under this IndentureTrust Agreement, the Trustee will shall deem it necessary or desirable that a matter be proved or established prior to its taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) will shall be deemed to be conclusively proved and established by a Certificates the certificate of the Lessee Representative or the Lessor City Representative and such Certificates will certificate shall be full warranty to the Trustee for any action taken or suffered by it under the provisions of this Indenture Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable to it. reasonable.
(c) The Trustee may become the Owner of the Certificates Obligations with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the Lessee or the Lessor City with the same rights it would have if it were not the Trustee; Trustee and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of the CertificatesObligations, whether or not such committee will shall represent the Owners of the majority in principal amount of the Certificates Obligations then Outstanding.
(d) The recitals, statements and representations by the City contained in this Trust Agreement, the Purchase Agreement or in the Obligations shall be taken and construed as made by and on the part of the City and not by the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof.
(e) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Trust Agreement or for anything whatever in connection with the funds and accounts established hereunder, except only for its own willful misconduct or gross negligence.
(f) No provision in this Trust Agreement shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability (including, without limitation, any and all environmental liability) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(g) The Trustee shall not be accountable for the use or application by the City or any other party of any funds which the Trustee has released in accordance with the terms of this Trust Agreement.
(h) The Trustee makes no representation or warranty, express or implied, as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose or fitness for the use contemplated by the City of the Refinance Projects. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Purchase Agreement or this Trust Agreement for the acquisition of the Refinanced Projects.
(i) Notwithstanding any provision in this Trust Agreement or the Purchase Agreement to the contrary, the Trustee shall not be required to take notice or be deemed to have notice of an Event of Default, except an Event of Default under Section 9(a)(i)(A) of the Purchase Agreement, unless a Responsible Officer of the Trustee has actual notice thereof or is specifically notified in writing of such default by the City or the Owners of at least twenty-five percent (25%) in aggregate principal amount of all Obligations then Outstanding.
(j) The Trustee agrees to accept and act upon instructions of directions pursuant to this Trust Agreement sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the City elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(k) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
Appears in 1 contract
Samples: Trust Agreement
