Protection of Indenture Trustee. By way of supplement to the provisions of any law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as follows: (a) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes (except the representations and warranties contained in Sections 12.12(1), 12.13 and 12.15 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Trust; (b) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default has occurred and the Notes have been declared immediately due and payable in accordance with this Indenture, and the Indenture Trustee has determined or become obliged to enforce the same; (c) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust of any of the covenants herein contained or of any acts of the agents or servants of the Trust; (d) subject to Section 15.02, the Trust hereby indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries and stockholders out of the property of the Trust from and against any and all liabilities, losses, costs, claims, actions, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated hereby, legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted hereby, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty or bad faith of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Indenture Trustee; (e) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Notes or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable; (f) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunder, act by its Responsible Officers; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon terms and conditions and subject to regulations as the Indenture Trustee may think to be in the best interest of the Specified Creditors; (g) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunder, unless the Indenture Trustee shall have received from the Trust or a Specified Creditor written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge; (h) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust until a duly authenticated copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and (i) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture.
Appears in 2 contracts
Samples: Trust Indenture (Golden Credit Card Trust), Trust Indenture
Protection of Indenture Trustee. By way of supplement to the provisions of any law from for the time to time being relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trusteetrustees, it is expressly declared and agreed as follows:
(a) the The Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes (except the representations and warranties contained in Sections 12.12(1), 12.13 and 12.15 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Trust;
(b) the Indenture Trustee shall will not be bound to give notice to any Person notice of the execution hereof or of the Lien charge of this Indenture or any Related Security Document unless and until an Event any of Default the security hereby constituted has occurred and the Notes have been declared immediately due and payable in accordance with this Indenture, become enforceable and the Indenture Trustee has determined or become obliged to enforce the same;
(b) the Indenture Trustee will not be liable for or by reason of any failure or defect of title to or any lien, charge or encumbrance upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Notes or be required to verify the same, but all statements or implications will be deemed to have been made by the Trust only, and it will not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to or require evidence of the registration or filing or renewal of this Indenture, or any other indenture or writing by way of mortgage, pledge, charge, transfer or assignment of or upon any of the Collateral or upon any other property of the Trust or to procure any mortgage, pledge or charge or other additional instrument of further assurance or to do any other act for the continuance of the security constituted hereby or for giving notice of the existence of any of the security constituted hereby or for extending or supplementing the same, or to insure or keep insured or require evidence of insurance against loss or damage by fire or otherwise any of the Collateral, or to keep itself informed or advised as to the payment by the Trust of any taxes or assessments or premiums of insurance or other payments which the Trust should make or to require payments to be made;
(c) the Indenture Trustee shall will not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust or of any Person on whose signature the Indenture Trustee may be called upon or entitled to act or refrain from acting under this Indenture;
(d) the Indenture Trustee will not incur any liability or responsibility whatever whatsoever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall will the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust of any of the covenants herein contained or of any acts of servants or agents of the Trust;
(e) the Indenture Trustee may buy, sell, lend upon and deal in the Notes and generally contract and enter into financial transactions with the Administrative Agent or the Issuer Trustee without being liable to account for any profits made thereby;
(f) the Indenture Trustee shall have the right to disclose any information disclosed or released to it if in the opinion of the Indenture Trustee, or its legal counsel, it is required to disclose such information under any applicable laws, court order or administrative directions and the Indenture Trustee shall not be responsible or liable to any party for any loss or damage arising out of or in any way sustained or incurred or in any way relating to such disclosure;
(g) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recital in this Indenture or in the Notes or required to verify the same, but all said statements or recitals are and shall be deemed to be made by the Trust;
(h) subject to Section 12.02(1), no property or assets of the Indenture Trustee owned in its personal capacity will be subject to levy, execution or other enforcement procedure arising under or in connection with this Indenture;
(i) the Indenture Trustee shall not incur any liability or responsibility whatsoever or be in any way responsible for the consequences of any breach on the part of the Trust of any of the representations, warranties or covenants herein contained or of any acts of the agents or servants of the Trust;; and
(dj) subject to Section 15.02, the Trust hereby indemnifies and saves harmless the Indenture Trustee and Trustee, its directors, officers, directors, employees, agents, beneficiaries representatives and stockholders out of the property of the Trust agents from and against any and all liabilitiesclaims, demands, losses, actions, causes of action, costs, claimscharges, actionsexpenses, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties damages, liabilities and obligations under this Indenturewhatsoever, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebywithout limitation, legal fees and disbursements on a solicitor and his own client substantial indemnity basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee or any of the foregoing Persons may suffer or incur, whether at law or in equity, in any way caused by or arising, directly directly, or indirectly, in respect of any act, deed, matter or thing whatsoever made, anything done, acquiesced in omitted to be done or omitted permitted to be done by the Indenture Trustee or any of the foregoing Persons in or about or in relation to the execution of its the Indenture Trustee’s duties as Indenture Trustee and including any deedincluding, matter without limitation, anything done or thing omitted to be done in relation to the registration, perfection, release or discharge of security; provided that the security constituted herebyforegoing indemnification shall not apply in respect of anything done, save only in omitted to be done or permitted to be done by the event Indenture Trustee or any of the gross negligence foregoing Persons arising from or reckless disregard in acting or failing to act, or connection with the wilful misconduct, dishonesty gross negligence or bad faith the failure to comply with the standard of care referred to in Section 12.02(1) by the Indenture Trustee, its officers or employees. It is understood The Indenture Trustee shall be the trustee for its directors, officers, employees, representatives and agreed agents for the purpose of the foregoing indemnification and the Trust hereby agrees that this the foregoing indemnification shall survive the termination or discharge of this Indenture or and the resignation or removal replacement of the Indenture Trustee;
(e) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Notes or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable;
(f) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunder, act by its Responsible Officers; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon terms and conditions and subject to regulations as the Indenture Trustee may think to be in the best interest of the Specified Creditors;
(gk) the Indenture Trustee shall not be required to take notice give security for the execution of the trusts or be deemed to have notice its conduct or actual knowledge of any matter hereunder, unless the Indenture Trustee shall have received from the Trust or a Specified Creditor written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;administration under this Indenture; and
(hl) the Indenture Trustee shall will not be bound required to act in accordance with any direction or request of the Trust until a duly authenticated copy of the document containing the direction or request has been delivered disburse monies according to this Indenture except to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and
(i) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indentureextent that monies have been deposited with it.
Appears in 1 contract
Samples: Trust Indenture
Protection of Indenture Trustee. By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat:
(a) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1sections 2.7(d), 12.1, 12.10(a) and 12.13 and 12.15 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the TrustCorporation;
(b) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default and a declaration of acceleration has occurred and the Notes have been declared immediately due and payable in accordance with this Indentureoccurred, and the Indenture Trustee has determined or become obliged to enforce the same;
(c) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Corporation of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCorporation;
(d) subject to Section 15.02, the Trust hereby Corporation indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and agents from and against any and all liabilities, losses, costs, claims, actions, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, and including legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty or bad faith misconduct of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Indenture Trustee;
(e) without limiting the generality of section 12.12(d), the Corporation will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any Taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from a Common Share Interest Payment Election, and (iv) any Taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any Taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital.
(f) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Corporation only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable;
(fg) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunderunder this Indenture, act by its Responsible Officersthe responsible officers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think determine to be in the best interest of the Specified CreditorsHolders;
(gh) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless the Indenture Trustee shall have received from the Trust Corporation or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hi) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Corporation until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes a Debenture and believed by the Indenture Trustee to be genuine; and
(ij) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Corporation or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture.
Appears in 1 contract
Protection of Indenture Trustee. By way of supplement to the provisions of any law from for the time to time being relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trusteetrustees, it is expressly declared and agreed as follows:
(a) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes (except the representations and warranties contained in Sections 12.12(1), 12.13 and 12.15 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Trust;
(b) the Indenture Trustee shall will not be bound to give notice to any Person notice of the execution hereof or of the Lien charge of this Indenture or any Related Security Document unless and until an Event any of Default the security hereby constituted has occurred and the Notes have been declared immediately due and payable in accordance with this Indenture, become enforceable and the Indenture Trustee has determined or become obliged to enforce the same;
(b) the Indenture Trustee will not be liable for or by reason of any failure or defect of title to or any lien, charge or encumbrance upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Notes or be required to verify the same, but all statements or implications will be deemed to have been made by the Trust only, and it will not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to or require evidence of the registration or filing or renewal of this Indenture, or any other indenture or writing by way of mortgage, pledge, charge, transfer or assignment of or upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any mortgage, pledge or charge or other additional instrument of further assurance or to do any other act for the continuance of the security constituted hereby or for giving notice of the existence of any of the security constituted hereby or for extending or supplementing the same, or to insure or keep insured or require evidence of insurance against loss or damage by fire or otherwise the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or assessments or premiums of insurance or other payments which the Trust should make or to require payments to be made;
(c) the Indenture Trustee shall will not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust or of any Person on whose signature the Indenture Trustee may be called upon or entitled to act or refrain from acting under this Indenture;
(d) the Indenture Trustee will not incur any liability or responsibility whatever whatsoever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall will the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust of any of the covenants herein contained or of any acts of servants or agents of the Trust;
(e) the Indenture Trustee may buy, sell, lend upon and deal in the Notes and generally contract and enter into financial transactions with the Trust, the Financial Services Agent, the Financial Services Sub-Agent or the Issuer Trustee without being liable to account for any profits made thereby;
(f) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recital in this Indenture or in the Notes or required to verify the same, but all said statements or recitals are and shall be deemed to be made by the Trust;
(g) subject to Section 12.2(1), no property or assets of the Indenture Trustee owned in its personal capacity will be subject to levy, execution or other enforcement procedure arising under or in connection with this Indenture;
(h) the Indenture Trustee shall not incur any liability or responsibility whatsoever or be in any way responsible for the consequences of any breach on the part of the Trust of any of the representations, warranties or covenants herein contained or of any acts of the agents or servants of the Trust;
(di) subject to Section 15.02, the Trust hereby indemnifies and saves harmless the Indenture Trustee and Trustee, its directors, officers, directorsrepresentatives, employees, agents, beneficiaries employees and stockholders out of the property of the Trust agents from and against any and all liabilitiesclaims, demands, losses, actions, causes of action, costs, claimscharges, actionsexpenses, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties damages, liabilities and obligations under this Indenturewhatsoever, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebywithout limitation, legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee or any of the foregoing Persons may suffer or incur, whether at law or in equity, in any way caused by or arising, directly directly, or indirectly, in respect of any act, deed, matter or thing whatsoever made, anything done, acquiesced in omitted to be done or omitted permitted to be done by the Indenture Trustee or any of the foregoing Persons in or about or in relation to the execution of its the Indenture Trustee’s duties as Indenture Trustee and including any deedincluding, matter without limitation, anything done or thing omitted to be done in relation to the registration, perfection, release or discharge of security; provided that the security constituted herebyforegoing indemnification shall not apply in respect of anything done, save only omitted to be done or permitted to be done by the Indenture Trustee arising from or in the event of the gross negligence or reckless disregard in acting or failing to act, or connection with the wilful misconduct, dishonesty misconduct or bad faith negligence of the Indenture Trustee, its officers or employees. It The Trust hereby agrees that the Indenture Trustee is understood the trustee for its directors, officers, representatives, employees and agreed agents for the purpose of the foregoing indemnification and that this indemnification shall survive the termination or discharge of this Indenture or and the resignation or removal replacement of the Indenture Trustee;
(e) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Notes or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable;
(f) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunder, act by its Responsible Officers; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon terms and conditions and subject to regulations as the Indenture Trustee may think to be in the best interest of the Specified Creditors;
(gj) the Indenture Trustee shall not be required to take notice give security for the execution of the trusts or be deemed to have notice its conduct or actual knowledge of any matter hereunder, unless the Indenture Trustee shall have received from the Trust or a Specified Creditor written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;administration under this Indenture; and
(hk) the Indenture Trustee shall will not be bound required to act in accordance with any direction or request of disburse money according to this Indenture except to the Trust until a duly authenticated copy of the document containing the direction or request extent that money has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and
(i) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenturedeposited with it.
Appears in 1 contract
Samples: Trust Indenture (PHH Corp)
Protection of Indenture Trustee. 11.12.1 By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat no provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:
(a) this subsection shall not be construed to limit the effect of Sections 11.1 or 11.3;
(b) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1)the last sentence of subsection 2.7.4 and in sections 11.1 11.10, 12.13 11.11 and 12.15 11.13 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the TrustCompany;
(bc) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default and a declaration of acceleration has occurred and the Notes have been declared immediately due and payable in accordance with this Indentureoccurred, and the Indenture Trustee has determined or become obliged to enforce the same;
(cd) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Company of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCompany;
(de) subject to Section 15.02, the Trust hereby Company indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and agents from and against any and all liabilities, losses, costs, damages, claims, actions, expenses (including the legal fees and disbursements on a solicitor and his own client basisof its counsel) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this IndentureIndenture and/or the exercise of its rights hereunder, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, and including legal fees and disbursements on a solicitor and his own client basis of its counsel and costs and expenses incurred in connection with the enforcement of this indemnity, but excluding loss of profit, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties and exercise of its rights hereunder as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty willful misconduct or bad faith of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture Indenture, or the resignation or removal of the Indenture Trustee, or the repayment of the Debentures;
(ef) without limiting the generality of section 11.12.1(e), the Company will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from any conversion of Debentures to Common Shares or payments and calculations in connection therewith, provided that the Indenture Trustee has complied with the provisions of this Indenture in carrying out its obligations in respect of any conversion of Debentures to Common Shares or payments and calculations in connection therewith, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital;
(g) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Company only, and it the Indenture Trustee shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see liable with respect to the registration, recording validity or filing or renewal sufficiency of this Indenture or Indenture, any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the sameOffering Document, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liableDebentures;
(fh) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion discretions vested in it hereunderunder this Indenture, act by its the Responsible OfficersOfficers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Specified CreditorsHolders;
(gi) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless a Responsible Officer of the Indenture Trustee shall have received from the Trust Company or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hj) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Company until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any such document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and;
(ik) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Company or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture;
(l) the Indenture Trustee shall not be liable for any error of judgment made in good faith, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(m) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Debentures relating to the 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 Indenture Trustee, under this Indenture;
(n) notwithstanding any other provision herein to the contrary, to secure the obligations owed to the Indenture Trustee pursuant to section 8.8 and subsection 11.12.1(e) of this Indenture, the Indenture Trustee (i) shall have a lien prior on all money or property held or collected by it in its capacity as Indenture Trustee, and (ii) may withhold or set-off any amounts due and owing to it under this Indenture from any money or property held or collected by it in its capacity as Indenture Trustee, except for any money or property held in trust to pay any amounts payable to the Holders under this Indenture;
(o) notwithstanding any provision herein to the contrary, in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations hereunder or under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above;
(p) the Indenture Trustee shall not be liable or responsible for the Company’s use of proceeds or moneys received by the Company for the Debentures;
(q) the rights, protection, immunities and indemnities applicable to the Indenture Trustee shall apply to the Indenture Trustee in each other capacity it acts hereunder, including Registrar and Paying Agent and to any other agent appointed by the Company hereunder;
(r) except as otherwise provided in this Indenture, the Indenture Trustee shall (i) not be responsible for the payment of any interest with respect to amounts held by it and (ii) have no obligation to invest or reinvest any amounts held by it; and
(s) in no event shall the Indenture Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Protection of Indenture Trustee. 11.12.1 By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat no provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:
(a) this subsection shall not be construed to limit the effect of Sections 11.1 or 11.3;
(b) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1)the last sentence of subsection 2.8.4 and in sections 11.1 11.10, 12.13 11.11 and 12.15 11.13 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the TrustCompany;
(bc) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default and a declaration of acceleration has occurred and the Notes have been declared immediately due and payable in accordance with this Indentureoccurred, and the Indenture Trustee has determined or become obliged to enforce the same;
(cd) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Company of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCompany;
(de) subject to Section 15.02, the Trust hereby Company indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and Agents from and against any and all liabilities, losses, costs, damages, claims, actions, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this IndentureIndenture and/or the exercise of its rights hereunder, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, and including legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, but excluding loss of profit, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties and exercise of its rights hereunder as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty misconduct or bad faith of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture Indenture, or the resignation or removal of the Indenture Trustee, or the repayment of the Debentures;
(ef) without limiting the generality of section 11.12.1(e), the Company will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from a Common Share Interest Payment Election, provided that the Indenture Trustee has complied with the provisions of this Indenture and all Applicable Laws in carrying out its obligations in respect of such Common Share Interest Payment Election, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital;
(g) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Company only, and it the Indenture Trustee shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see liable with respect to the registration, recording validity or filing or renewal sufficiency of this Indenture or Indenture, any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the sameOffering Document, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liableDebentures;
(fh) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion discretions vested in it hereunderunder this Indenture, act by its the Responsible OfficersOfficers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Specified CreditorsHolders;
(gi) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless the Indenture Trustee shall have received from the Trust Company or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hj) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Company until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any such document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and;
(ik) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Company or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture;
(l) the Indenture Trustee shall not be liable for any error of judgment made in good faith, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(m) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Debentures relating to the 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 Indenture Trustee, under this Indenture;
(n) notwithstanding any other provision herein to the contrary, to secure the obligations owed to the Indenture Trustee pursuant to section 8.8 and subsection 11.12.1(e) of this Indenture, the Indenture Trustee (i) shall have a lien prior on all money or property held or collected by it in its capacity as Indenture Trustee, and (ii) may withhold or set-off any amounts due and owing to it under this Indenture from any money or property held or collected by it in its capacity as Indenture Trustee, except for any money or property held in trust to pay any amounts payable to the Holders under this Indenture;
(o) notwithstanding any provision herein to the contrary, in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations hereunder or under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above;
(p) the Indenture Trustee shall not be liable or responsible for the Company’s use of proceeds or moneys received by the Company for the Debentures;
(q) the rights, protection, immunities and indemnities applicable to the Indenture Trustee shall apply to the Indenture Trustee in each other capacity it acts hereunder, including Registrar and Paying Agent;
(r) except as otherwise provided in this Indenture, the Indenture Trustee shall (i) not be responsible for the payment of any interest with respect to amounts held by it and (ii) have no obligation to invest or reinvest any amounts held by it; and
(s) in no event shall the Indenture Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Protection of Indenture Trustee. 11.12.1 By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat no provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:
(a) this subsection shall not be construed to limit the effect of Sections 11.1 or 11.3;
(b) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1)the last sentence of subsection 2.7.4 and in sections 11.1 11.10, 12.13 11.11 and 12.15 11.13 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Trust;
(b) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default has occurred and the Notes have been declared immediately due and payable in accordance with this Indenture, and the Indenture Trustee has determined or become obliged to enforce the sameCompany;
(c) [INTENTIONALLY OMITTED]
(d) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Company of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCompany;
(de) subject to Section 15.02, the Trust hereby Company indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and agents from and against any and all liabilities, losses, costs, damages, claims, actions, expenses (including the legal fees and disbursements on a solicitor and his own client basisof its counsel) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this IndentureIndenture and/or the exercise of its rights hereunder, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, and including legal fees and disbursements on a solicitor and his own client basis of its counsel and costs and expenses incurred in connection with the enforcement of this indemnity, but excluding loss of profit, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties and exercise of its rights hereunder as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty willful misconduct or bad faith of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture Indenture, or the resignation or removal of the Indenture Trustee, or the repayment of the Debentures;
(ef) without limiting the generality of section 11.12.1(e), the Company will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from any conversion of Debentures to Common Shares or payments and calculations in connection therewith, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital;
(g) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Company only, and it the Indenture Trustee shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see liable with respect to the registration, recording validity or filing or renewal sufficiency of this Indenture or Indenture, any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the sameOffering Document, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liableDebentures;
(fh) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion discretions vested in it hereunderunder this Indenture, act by its the Responsible OfficersOfficers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Specified CreditorsHolders;
(gi) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless a Responsible Officer of the Indenture Trustee shall have received from the Trust Company or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hj) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Company until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any such document purporting to be proper Notes and believed by the Indenture Trustee to be genuine; and;
(ik) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Company or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture;
(l) the Indenture Trustee shall not be liable for any error of judgment made in good faith, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(m) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Debentures relating to the 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 Indenture Trustee, under this Indenture;
(n) notwithstanding any other provision herein to the contrary, to secure the obligations owed to the Indenture Trustee pursuant to section 8.8 and subsection 11.12.1(e) of this Indenture, the Indenture Trustee (i) shall have a lien prior on all money or property held or collected by it in its capacity as Indenture Trustee, and (ii) may withhold or set-off any amounts due and owing to it under this Indenture from any money or property held or collected by it in its capacity as Indenture Trustee, except for any money or property held in trust to pay any amounts payable to the Holders under this Indenture;
(o) notwithstanding any provision herein to the contrary, in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations hereunder or under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above;
(p) the Indenture Trustee shall not be liable or responsible for the Company’s use of proceeds or moneys received by the Company for the Debentures;
(q) the rights, protection, immunities and indemnities applicable to the Indenture Trustee shall apply to the Indenture Trustee in each other capacity it acts hereunder, including Registrar and Paying Agent and to any other agent appointed by the Company hereunder;
(r) except as otherwise provided in this Indenture, the Indenture Trustee shall (i) not be responsible for the payment of any interest with respect to amounts held by it and (ii) have no obligation to invest or reinvest any amounts held by it; and
(s) in no event shall the Indenture Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Protection of Indenture Trustee. By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat:
(a) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1sections 2.7(d), 12.1, 12.10(a) and 12.13 and 12.15 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the TrustCorporation;
(b) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default and a declaration of acceleration has occurred and the Notes have been declared immediately due and payable in accordance with this Indentureoccurred, and the Indenture Trustee has determined or become obliged to enforce the same;
(c) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Corporation of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCorporation;
(d) subject to Section 15.02, the Trust hereby Corporation indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and agents from and against any and all liabilities, losses, costs, claims, actions, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, and including legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful misconduct, dishonesty or bad faith misconduct of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Indenture Trustee;
(e) without limiting the generality of section 12.12(d), the Corporation will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from a Common Share Interest Payment Election, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital.
(f) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Corporation only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable;
(fg) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunderunder this Indenture, act by its Responsible Officersthe responsible officers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Specified CreditorsHolders;
(gh) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless the Indenture Trustee shall have received from the Trust Corporation or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hi) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Corporation until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes a Debenture and believed by the Indenture Trustee to be genuine; and
(ij) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Corporation or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture.
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Protection of Indenture Trustee. 13.12.1 By way of supplement to the provisions of any law Applicable Law from time to time relating to trustees and in addition to any other provision of this Indenture for the relief of the Indenture Trustee, it is expressly declared and agreed as followsthat:
(a) the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Notes Debentures (except the representations and warranties contained in Sections 12.12(1), 12.13 the last sentence of subsection 2.7.4 and 12.15 in subsection 13.10.1 and sections 13.1.1 and 13.13 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the TrustCompany;
(b) the Indenture Trustee shall not be bound to give to any Person notice of the execution hereof or of the Lien of this Indenture or any Related Security Document unless and until an Event of Default and a declaration of acceleration has occurred and the Notes have been declared immediately due and payable in accordance with this Indentureoccurred, and the Indenture Trustee has determined or become obliged to enforce the same;
(c) the Indenture Trustee shall not incur any liability or responsibility whatever in consequence of permitting or suffering the Trust to retain or to be in possession of any part of any of the Collateral and to use and enjoy the same unless herein expressly otherwise provided; nor shall the Indenture Trustee be or become responsible or liable for any destruction, deterioration, loss, injury or damage which may occur or be done by the Trust or by any other Person to any of the Collateral, or be in any way responsible for the consequence of any breach on the part of the Trust Company of any of the covenants herein contained in this Indenture or of any acts of the agents or servants of the TrustCompany;
(d) subject to Section 15.02, the Trust hereby Company indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees, agents, beneficiaries directors and stockholders out of the property of the Trust employees and agents from and against any and all liabilities, losses, costs, claims, actions, expenses (including legal fees and disbursements on a solicitor and his own client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated herebyby this Indenture, legal fees and disbursements on a solicitor and his own client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Indenture Trustee and including any deed, matter or thing in relation to the registration, perfection, release or discharge of the security constituted herebyTrustee, save only in the event of the gross negligence or reckless disregard in acting or failing to act, or the wilful willful misconduct, dishonesty or bad faith of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Indenture Trustee;
(e) without limiting the generality of section 13.12.1(d), the Company will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from a Common Share Interest Payment Election, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital.
(f) the Indenture Trustee shall not be liable for or by reason of any failure or defect of title to or any Lien upon any of the Collateral or for or by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Notes Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Trust Company only, and it shall not be the duty of the Indenture Trustee, except as herein otherwise specifically provided, to see to the registration, recording or filing or renewal of this Indenture or any Related Security Document upon any of the Collateral or any part thereof or upon any other property of the Trust or to procure any local mortgage, pledge or charge or other additional document of further assurance or to do any other act for the continuance of the Lien Hereof or for giving notice of the existence of any of the Lien Hereof or for extending or supplementing the same, or to insure or keep insured against loss or damage by fire or otherwise any of the Collateral or any part thereof, or to keep itself informed or advised as to the payment by the Trust of any taxes or premiums of insurance or other payments which the Trust should make or to require payments to be made; it being hereby agreed and declared that as to all matters and things referred to in this Section 12.14(e), the duty and responsibility shall rest upon the Trust and not upon the Indenture Trustee and the failure of the Trust to discharge this duty and responsibility shall not in any way render the Indenture Trustee liable or cast upon it any duty or responsibility for breach of which it would be liable;
(fg) the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it hereunderunder this Indenture, act by its Responsible Officersthe responsible officers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Specified CreditorsHolders;
(gh) the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter hereunderunder this Indenture, unless the Indenture Trustee shall have received from the Trust Company or a Specified Creditor Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge;
(hi) the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Trust Company until a duly authenticated an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be proper Notes a Debenture and believed by the Indenture Trustee to be genuine; and
(ij) the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Trust Company or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture.
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Samples: Indenture (Alamos Gold Inc)
