Common use of Rights and discretion of the Security Trustee Clause in Contracts

Rights and discretion of the Security Trustee. (a) The Security Trustee may in relation to any Bond Document act on the opinion or advice of or a certificate or any information obtained from any lawyer, banker, valuer, surveyor, broker, auctioneer, accountant, financial adviser, securities dealer, merchant bank or other expert, whether obtained by the Security Trustee and whether or not addressed to the Security Trustee and whether or not the liability of any such adviser in relation to such advice or opinion is limited in accordance with normal practice and shall not be responsible for any loss occasioned by so acting; any such opinion, advice, certificate or information may be sent or obtained by letter, E-mail or facsimile transmission and the Security Trustee shall not be liable for acting on any opinion, advice, certificate or information purporting to be so conveyed although the same shall contain some error or shall not be authentic. (b) The Security Trustee may call for and shall be at liberty to accept a certificate duly signed by any authorized managing director of the Issuer (such position to be evidenced by a recent commercial register excerpt) as sufficient evidence of any fact or matter or the expediency of any transaction or thing, save for manifest errors, and to treat such a certificate to the effect that any particular dealing or transaction or step or thing is, in the opinion of the persons so certifying, expedient or proper as sufficient evidence that it is expedient or proper, and the Security Trustee shall not be bound in any such case to call for further evidence or be responsible for any loss or liability that may be caused by acting on any such certificate. Save for manifest errors, the Security Trustee may rely and shall not be liable or responsible for the existence, accuracy or sufficiency of any opinions (other than legal opinions on which accuracy or sufficiency the Security Trustee may rely without limitation), searches, reports, certificates, valuations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with the Bond Documents. (c) The Security Trustee shall (save as otherwise expressly provided in any Bond Document) as regards all the trusts, powers, authorities and discretions vested in it by or pursuant to any Bond Document to which the Security Trustee is a party or which constitute part of the Security or which are conferred upon the Security Trustee by operation of law, have absolute and uncontrolled discretion as to the exercise or non-exercise thereof (save as otherwise provided to the contrary) and shall not be responsible for any loss, costs, damages, expenses or inconvenience that may result from the exercise or non-exercise thereof. The Security Trustee shall not be so bound unless first indemnified, secured or pre-funded to its satisfaction against all actions, proceedings, claims and demands to which it may render itself liable and all costs, charges, damage and expenses (including properly incurred legal costs and expenses) and liabilities which it may properly incur by so doing. (d) The Security Trustee may appoint a custodian and shall be at liberty to place any Bond Document to which the Security Trustee is a party or which constitute part of the Security and all deeds and other documents relating to the Security in any safe deposit, safe or other receptacle selected by the Security Trustee, in any part of the world (excluding, however, any jurisdiction where any stamp or withholding or other tax is triggered), or with any bank or banking company or company whose business includes undertaking the safe custody of documents, lawyer or firm of lawyers believed by it to be of good repute, in any part of the world (excluding, however, any jurisdiction where any stamp or withholding or other tax is triggered), and the Security Trustee shall not be responsible for or be required to insure against any loss incurred in connection with any such deposit, and the Issuer shall pay all sums required to be paid on account of or in respect of any such deposit. (e) The Security Trustee as between itself and the Bondholders shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement or any other Bond Document and every such determination, whether made upon a question actually raised or implied in the acts or proceedings of the Security Trustee shall be conclusive and shall bind the Secured Creditors. (f) Any agent engaged by the Security Trustee being a banker, lawyer, broker or other person engaged in any profession or business shall be entitled to charge and be paid all reasonable professional and other charges for business transacted and acts done by him or his partners or firm on matters arising in connection with any Bond Document and also his charges in addition to disbursements for all other work and business done and all time spent by him or his partners or firm on matters arising in connection with any Bond Document including matters which might or should have been attended to in person by a Security Trustee not being a banker, lawyer, broker or other professional person. (g) Any consent given by the Security Trustee for the purposes of any Bond Document may be given on such terms and subject to such conditions (if any) as the Security Trustee thinks fit and, notwithstanding anything to the contrary contained in any Bond Document, may be given retrospectively. (h) The Security Trustee shall not be responsible for recitals, statements, warranties or representations of any party (other than those relating to or provided by it) contained in any Bond Document or other document entered into in connection therewith and shall assume the accuracy and correctness thereof and shall not be responsible for the execution, legality, effectiveness, adequacy, genuineness, validity or enforceability or admissibility in evidence of any such agreement or other document or any trust or security thereby constituted or evidenced. Notwithstanding the generality of the foregoing, each Secured Creditor shall be solely responsible for making its own independent appraisal of, and investigation into, the financial condition, creditworthiness, condition, affairs, status and nature of the Issuer and the Security Trustee shall not at any time have any responsibility for the same and each Secured Creditor shall not rely on the Security Trustee in respect thereof. (i) The Security Trustee shall be entitled to rely upon a certificate (save in the case of manifest error) of the Issuer in respect of every matter and circumstance for which a certificate is expressly provided for under any Bond Document as sufficient evidence thereof, and the Security Trustee shall not be bound in any such case to call for further evidence or be responsible for any loss, liability, costs, damages, expenses or inconvenience that may be occasioned by its failing so to do. (j) The Security Trustee shall be protected and shall incur no liability for, or in respect of, any actions or thing done or suffered by it in reliance upon any document reasonably believed by it to be genuine and to have been signed by the proper parties. (k) In connection with any proposed modification, waiver, authorisation or determination permitted by the terms of this Agreement, the Security Trustee shall not have regard to the consequences thereof for individual Secured Creditors resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to, the jurisdiction of any particular territory. (l) The Security Trustee shall not be liable for any error of judgement made in good faith by any officer, employee or delegate of the Security Trustee assigned by the Security Trustee to administer its corporate trust matters unless it shall be proved that the Security Trustee (or such officer, employee or delegate of the Security Trustee) was grossly negligent in ascertaining the pertinent facts. (m) No provision of any Bond Document shall require the Security Trustee to do anything which may be illegal or contrary to applicable law or regulation or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers or otherwise in connection with any Bond Document (including, without limitation, enforcing the Security or forming any opinion or employing any legal, financial or other adviser), if it shall have grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it, (n) Notwithstanding the generality of this Clause 7, the Security Trustee shall (i) not be responsible for the genuineness, validity, effectiveness or suitability of any Bond Document or any other documents entered into in connection therewith or any other document or any obligation or rights created or purported to be created thereby or pursuant thereto or any security or the priority thereof constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible or liable to any person because of any invalidity of any provision of such documents or the unenforceability thereof, whether arising from statute, law or decisions of any court; and (ii) (without prejudice to the generality of the foregoing) shall not have any responsibility for or have any duty to make any investigation in respect of or in any way be liable whatsoever (in the absence of gross negligence, fraud or wilful misconduct) for: (A) the nature, status, creditworthiness or solvency of the Issuer, any other person party to any Bond Document or any other person or entity who has at any time provided any security or support whether by way of guarantee, charge or otherwise in respect of the Secured Obligations; (B) the execution, legality, validity, adequacy, admissibility in evidence or enforceability of any Bond Document or any other document entered into in connection therewith; (C) the title, ownership, value, sufficiency or existence of any Bond Document or the Security; (D) the registration, filing, protection or perfection of any security or the priority of the security whether in respect of any initial advance or any subsequent advance or any other sums or liabilities or the failure to effect or procure such registration, filing, protection or perfection of any of the security; (E) the scope or accuracy of any representations, warranties or statements made by or on behalf of the Issuer or any other person or entity who has at any time provided any agreement or document acknowledging, perfecting or giving legal effect to Bondholder's security interest or any document entered into in connection therewith; (F) the performance or observance by the Issuer or any other person of any provisions of any Security Document or any document entered into in connection therewith or the fulfilment or satisfaction of any conditions contained therein or relating thereto or any waiver or consent which has at any time been granted in relation to any of the foregoing; (G) the existence, accuracy or sufficiency of any legal or other opinions, searches, reports, certificates, valuations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with any Security Document or the transactions contemplated thereby; (H) the failure to call for delivery of documents of title to or require any transfers, legal mortgages, charges or other further assurances in relation to any of the Security; or (I) any other matter or thing relating to or in any way connected with this Agreement or any document entered into in connection therewith whether or not similar to the foregoing. (o) The Security Trustee shall not be liable or responsible for any loss, cost, damages, expenses or inconvenience which may result from anything done or omitted to be done by it in accordance with the provisions of any Bond Document. (p) The Security Trustee shall not have any responsibility whatsoever to any Secured Creditor as regards: (i) any deficiency which might arise because the Security Trustee is subject to tax in respect of the Security or any part thereof or any income therefrom or any proceeds thereof; (ii) the application of moneys realised under any Bond Document; and (iii) any shortfall which arises on the enforcement of the Security. (q) The Security Trustee shall not be liable to the Issuer or any other person whatsoever for any loss or damage arising from the realisation of the Security or any part thereof. (r) The Security Trustee shall not be under any obligation to insure any of the Security or to require any other person to maintain any such insurance and shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy or insufficiency of any such insurance. (s) The Security Trustee may appoint any person to act as its nominee on any terms, provided, however, that none of the provisions of this Agreement shall relieve the Security Trustee from or indemnify the Security Trustee against any liabilities, Loss or damage which by virtue of any rule of law would, but for any such provision, attach to it in respect of any gross negligence, willful misconduct or fraud on the part of the Security Trustee. (t) Whenever the Security Trustee considers it expedient in the interests of the Bondholders, it may delegate to any person, including without limitation any person to act as custodian or nominee in relation to such assets of the trust constituted by these presents, on any terms (including power to sub-delegate) all or any of its functions. If the Security Trustee exercises reasonable care in selecting such delegate, it shall not have any obligation to supervise such delegate or be responsible for any Liability incurred by reason of any misconduct or default by any such delegate or sub-delegate. Notwithstanding any delegation (including sub-delegation) by the Security Trustee of the performance of any of its obligations, the Security Trustee shall not thereby be released or discharged from any liability under this Agreement and shall remain responsible for the performance of its obligations. (u) Notwithstanding the foregoing the Security Trustee may at all times, whether or not so directed, take such action in respect of any right, power or discretion which is personal to the Security Trustee or is to preserve or protect the Security Trustee's position or is of a purely administrative nature.

Rights and discretion of the Security Trustee. (a) The Security Trustee may in relation to any Bond Document act on the opinion or advice of or a certificate or any information obtained from any lawyer, banker, valuer, surveyor, broker, auctioneer, accountant, financial adviser, securities dealer, merchant bank or other expert, whether obtained by the Security Trustee and whether or not addressed to the Security Trustee and whether or not the liability of any such adviser in relation to such advice or opinion is limited in accordance with normal practice and shall not be responsible for any loss occasioned by so acting; any such opinion, advice, certificate or information may be sent or obtained by letter, E-mail or facsimile transmission and the Security Trustee shall not be liable for acting on any opinion, advice, certificate or information purporting to be so conveyed although the same shall contain some error or shall not be authentic. (b) The Security Trustee may call for and shall be at liberty to accept a certificate duly signed by any authorized managing director of the Issuer (such position to be evidenced by a recent commercial register excerpt) as sufficient evidence of any fact or matter or the expediency of any transaction or thing, save for manifest errors, and to treat such a certificate to the effect that any particular dealing or transaction or step or thing is, in the opinion of the persons so certifying, expedient or proper as sufficient evidence that it is expedient or proper, and the Security Trustee shall not be bound in any such case to call for further evidence or be responsible for any loss or liability that may be caused by acting on any such certificate. Save for manifest errors, the Security Trustee may rely and shall not be liable or responsible for the existence, accuracy or sufficiency of any opinions (other than legal opinions on which accuracy or sufficiency the Security Trustee may rely without limitation), searches, reports, certificates, valuations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with the Bond Documents. (c) The Security Trustee shall (save as otherwise expressly provided in any Bond Document) as regards all the trusts, powers, authorities and discretions vested in it by or pursuant to any Bond Document to which the Security Trustee is a party or which constitute part of the Security or which are conferred upon the Security Trustee by operation of law, have absolute and uncontrolled discretion as to the exercise or non-non- exercise thereof (save as otherwise provided to the contrary) and shall not be responsible for any loss, costs, damages, expenses or inconvenience that may result from the exercise or non-exercise thereof. The Security Trustee shall not be so bound unless first indemnified, secured or pre-pre- funded to its satisfaction against all actions, proceedings, claims and demands to which it may render itself liable and all costs, charges, damage and expenses (including properly incurred legal costs and expenses) and liabilities which it may properly incur by so doing. (d) The Security Trustee may appoint a custodian and shall be at liberty to place any Bond Document to which the Security Trustee is a party or which constitute part of the Security and all deeds and other documents relating to the Security in any safe deposit, safe or other receptacle selected by the Security Trustee, in any part of the world (excluding, however, any jurisdiction where any stamp or withholding or other tax is triggered), or with any bank or banking company or company whose business includes undertaking the safe custody of documents, lawyer or firm of lawyers believed by it to be of good repute, in any part of the world (excluding, however, any jurisdiction where any stamp or withholding or other tax is triggered), and the Security Trustee shall not be responsible for or be required to insure against any loss incurred in connection with any such deposit, and the Issuer shall pay all sums required to be paid on account of or in respect of any such deposit. (e) The Security Trustee as between itself and the Bondholders shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement or any other Bond Document and every such determination, whether made upon a question actually raised or implied in the acts or proceedings of the Security Trustee shall be conclusive and shall bind the Secured Creditors. (f) Any agent engaged by the Security Trustee being a banker, lawyer, broker or other person engaged in any profession or business shall be entitled to charge and be paid all reasonable professional and other charges for business transacted and acts done by him or his partners or firm on matters arising in connection with any Bond Document and also his charges in addition to disbursements for all other work and business done and all time spent by him or his partners or firm on matters arising in connection with any Bond Document including matters which might or should have been attended to in person by a Security Trustee not being a banker, lawyer, broker or other professional person. (g) Any consent given by the Security Trustee for the purposes of any Bond Document may be given on such terms and subject to such conditions (if any) as the Security Trustee thinks fit and, notwithstanding anything to the contrary contained in any Bond Document, may be given retrospectively. (h) The Security Trustee shall not be responsible for recitals, statements, warranties or representations of any party (other than those relating to or provided by it) contained in any Bond Document or other document entered into in connection therewith and shall assume the accuracy and correctness thereof and shall not be responsible for the execution, legality, effectiveness, adequacy, genuineness, validity or enforceability or admissibility in evidence of any such agreement or other document or any trust or security thereby constituted or evidenced. Notwithstanding the generality of the foregoing, each Secured Creditor shall be solely responsible for making its own independent appraisal of, and investigation into, the financial condition, creditworthiness, condition, affairs, status and nature of the Issuer and the Security Trustee shall not at any time have any responsibility for the same and each Secured Creditor shall not rely on the Security Trustee in respect thereof. (i) The Security Trustee shall be entitled to rely upon a certificate (save in the case of manifest error) of the Issuer in respect of every matter and circumstance for which a certificate is expressly provided for under any Bond Document as sufficient evidence thereof, and the Security Trustee shall not be bound in any such case to call for further evidence or be responsible for any loss, liability, costs, damages, expenses or inconvenience that may be occasioned by its failing so to do. (j) The Security Trustee shall be protected and shall incur no liability for, or in respect of, any actions or thing done or suffered by it in reliance upon any document reasonably believed by it to be genuine and to have been signed by the proper parties. (k) In connection with any proposed modification, waiver, authorisation or determination permitted by the terms of this Agreement, the Security Trustee shall not have regard to the consequences thereof for individual Secured Creditors resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to, the jurisdiction of any particular territory. (l) The Security Trustee shall not be liable for any error of judgement made in good faith by any officer, employee or delegate of the Security Trustee assigned by the Security Trustee to administer its corporate trust matters unless it shall be proved that the Security Trustee (or such officer, employee or delegate of the Security Trustee) was grossly negligent in ascertaining the pertinent facts. (m) No provision of any Bond Document shall require the Security Trustee to do anything which may be illegal or contrary to applicable law or regulation or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers or otherwise in connection with any Bond Document (including, without limitation, enforcing the Security or forming any opinion or employing any legal, financial or other adviser), if it shall have grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it, (n) Notwithstanding the generality of this Clause 7, the Security Trustee shall (i) not be responsible for the genuineness, validity, effectiveness or suitability of any Bond Document or any other documents entered into in connection therewith or any other document or any obligation or rights created or purported to be created thereby or pursuant thereto or any security or the priority thereof constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible or liable to any person because of any invalidity of any provision of such documents or the unenforceability thereof, whether arising from statute, law or decisions of any court; and (ii) (without prejudice to the generality of the foregoing) shall not have any responsibility for or have any duty to make any investigation in respect of or in any way be liable whatsoever (in the absence of gross negligence, fraud or wilful misconduct) for: (A) the nature, status, creditworthiness or solvency of the Issuer, any other person party to any Bond Document or any other person or entity who has at any time provided any security or support whether by way of guarantee, charge or otherwise in respect of the Secured Obligations; (B) the execution, legality, validity, adequacy, admissibility in evidence or enforceability of any Bond Document or any other document entered into in connection therewith; (C) the title, ownership, value, sufficiency or existence of any Bond Document or the Security; (D) the registration, filing, protection or perfection of any security or the priority of the security whether in respect of any initial advance or any subsequent advance or any other sums or liabilities or the failure to effect or procure such registration, filing, protection or perfection of any of the security; (E) the scope or accuracy of any representations, warranties or statements made by or on behalf of the Issuer or any other person or entity who has at any time provided any agreement or document acknowledging, perfecting or giving legal effect to Bondholder's ’s security interest or any document entered into in connection therewith; (F) the performance or observance by the Issuer or any other person of any provisions of any Security Document or any document entered into in connection therewith or the fulfilment or satisfaction of any conditions contained therein or relating thereto or any waiver or consent which has at any time been granted in relation to any of the foregoing; (G) the existence, accuracy or sufficiency of any legal or other opinions, searches, reports, certificates, valuations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with any Security Document or the transactions contemplated thereby; (H) the failure to call for delivery of documents of title to or require any transfers, legal mortgages, charges or other further assurances in relation to any of the Security; or (I) any other matter or thing relating to or in any way connected with this Agreement or any document entered into in connection therewith whether or not similar to the foregoing. (o) The Security Trustee shall not be liable or responsible for any loss, cost, damages, expenses or inconvenience which may result from anything done or omitted to be done by it in accordance with the provisions of any Bond Document. (p) The Security Trustee shall not have any responsibility whatsoever to any Secured Creditor as regards: (i) any deficiency which might arise because the Security Trustee is subject to tax in respect of the Security or any part thereof or any income therefrom or any proceeds thereof; (ii) the application of moneys realised under any Bond Document; and (iii) any shortfall which arises on the enforcement of the Security. (q) The Security Trustee shall not be liable to the Issuer or any other person whatsoever for any loss or damage arising from the realisation of the Security or any part thereof. (r) The Security Trustee shall not be under any obligation to insure any of the Security or to require any other person to maintain any such insurance and shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy or insufficiency of any such insurance. (s) The Security Trustee may appoint any person to act as its nominee on any terms, provided, however, that none of the provisions of this Agreement shall relieve the Security Trustee from or indemnify the Security Trustee against any liabilities, Loss or damage which by virtue of any rule of law would, but for any such provision, attach to it in respect of any gross negligence, willful misconduct or fraud on the part of the Security Trustee. (t) Whenever the Security Trustee considers it expedient in the interests of the Bondholders, it may delegate to any person, including without limitation any person to act as custodian or nominee in relation to such assets of the trust constituted by these presents, on any terms (including power to sub-delegate) all or any of its functions. If the Security Trustee exercises reasonable care in selecting such delegate, it shall not have any obligation to supervise such delegate or be responsible for any Liability incurred by reason of any misconduct or default by any such delegate or sub-delegate. Notwithstanding any delegation (including sub-delegation) by the Security Trustee of the performance of any of its obligations, the Security Trustee shall not thereby be released or discharged from any liability under this Agreement and shall remain responsible for the performance of its obligations. (u) Notwithstanding the foregoing the Security Trustee may at all times, whether or not so directed, take such action in respect of any right, power or discretion which is personal to the Security Trustee or is to preserve or protect the Security Trustee's ’s position or is of a purely administrative nature.