Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give. (b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity. (c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid. (d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 3 contracts
Samples: Warrant Indenture (Oilsands Quest Inc), Warrant Indenture (Oilsands Quest Inc), Warrant Indenture (Oilsands Quest Inc)
Rights and Duties of Trustee. The rights and duties of the Trustee are as follows:
(a) In in the exercise of the rights and duties prescribed or conferred by the terms of this IndentureAgreement, the Trustee shall will act honestly and in good faith with a view to the best interests of the Special Warrantholders and will exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in In the event absence of a breach of such standard of carenegligence or fraud, the TrusteeCompany shall indemnify and save harmless the Trustee from all loss, costs or damages it may suffer in administering the trusts of this Agreement. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own negligence or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.fraud;
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Special Warrantholders hereunder shall under this Agreement will be conditional upon the Special Warrantholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such the act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall Agreement will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.required in this subsection 13.2(b);
(dc) The Trustee may, before commencing action or proceeding, or at any time during the continuance of any such act, action or proceedingthereof, require the Warrantholders, Special Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Special Warrant Certificates held by them, for which Warrants Special Warrant Certificates the Trustee shall will issue receipts; and
(d) Every provision of this Agreement that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of the Applicable Legislation, of this section 13.2 and of section 13.3.
Appears in 2 contracts
Samples: Special Warrant Agreement (Urbana Ca Inc), Special Warrant Agreement (Urbana Ca Inc)
Rights and Duties of Trustee. (a1) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Trust Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b2) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof, nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee to determine whether or not the Trustee shall take action with respect to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitydefault.
(c3) The Subject only to the immediately preceding paragraph, the obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Trust Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d4) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Debentureholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(5) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it, is subject to the provisions of applicable legislation and of this Section 13.02 and of Section 13.03.
Appears in 2 contracts
Samples: Trust Indenture (Radiant Energy Corp), Trust Indenture (Radiant Energy Corp)
Rights and Duties of Trustee. (a) a. In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of care, the TrusteeTrustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own wilful misconduct or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givebad faith.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) b. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) c. The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants Warrant Certificates held by them, for which Warrants Warrant Certificates the Trustee shall issue receipts.
d. Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it, is subject to the provisions of Applicable Legislation, this section and of section 9.3.
e. The Trustee shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee to determine whether or not the Trustee shall take action with respect to any default.
Appears in 2 contracts
Samples: Warrant Indenture (Golden Star Resources LTD), Warrant Indenture (Golden Star Resources LTD)
Rights and Duties of Trustee. (a) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent trustee Trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of careforegoing, the Trustee, Trustee will be liable for its directors, officers, employees, shareholders and agents shall own wilful misconduct or gross negligence. The Trustee will not be liable for any act or default on the part of any agent employed by it or a co-Trustee, or for having permitted any agent or co-Trustee to receive and retain any money payable to the Trustee, except as aforesaid.
(b) The Trustee may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action taken with respect to, the Indenture or any Security Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person. Any such Person shall have the benefit of the rights and protections of this Article 13 to the same extent as the Trustee.
(c) Nothing herein contained shall impose any obligation on the Trustee to see to or require evidence of the registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto or thereto.
(d) The Trustee shall not be:
(i) accountable for the use or application by the Issuer of the Notes or the proceeds thereof;
(ii) responsible to make any calculation with respect to any matter under this Indenture;
(iii) liable for any error in judgment made in good faith unless negligent in ascertaining the pertinent facts;
(iv) responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; cyberterrorism; accidents; labor disputes; acts of civil or military authority and governmental action; or
(v) bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, or inquiry as to the performance by the Company of any of its covenants in this Indenture.
(e) The Trustee shall have the right to disclose any information disclosed or released to it if, in the reasonable opinion of the Trustee, after consultation with Counsel, it is required to disclose under any applicable laws, court order or administrative directions, or if, in the reasonable opinion of the Trustee, it is required to disclose to its regulatory authority. The 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.
(f) The Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on any documents that arewhose signature the Trustee is entitled to act, prima facieor refrain from acting, properly executed; under a specific provision of this Indenture.
(g) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(h) The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other similar electronic means in a form satisfactory to the Trustee from a Person purporting to be (and whom the Trustee, acting reasonably, believes in good faith to be) an authorized representative of the Issuer or a Holder, as sufficient instructions and authority of such party for the loss Trustee to act and shall have no duty to verify or disposition of monies; or confirm that Person is so authorized. The Trustee shall have no liability for any other action losses, liabilities, costs or failure expenses incurred by it as a result of such reliance upon, or compliance with, such instructions or directions, except to act by the extent any such losses, cost or expense are the direct result of gross negligence or willful misconduct on the part of the Trustee. The Issuer and the Holders agree: (i) to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach risk of trust. If the Trustee has retained an appropriate expert or advisor acting on unauthorized instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with respect the various methods of transmitting instructions to any matter connected with its duties under this indenture, the Trustee and that there may act or refuse be more secure methods of transmitting instructions than the method(s) selected by such party; and (iii) that the security procedures (if any) to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, followed in connection with the affairs its transmission of the Corporation or any other person for anything done or permitted instructions provide to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out it a commercially reasonable degree of anything done or permitted or omitted to be done protection in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any light of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidparticular needs and circumstances.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 2 contracts
Samples: Trust Indenture (Columbia Care Inc.), Trust Indenture (Columbia Care Inc.)
Rights and Duties of Trustee. (a) a. In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of care, the TrusteeTrustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own wilful misconduct or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givebad faith.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) b. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) c. The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants Warrant Certificates held by them, for which Warrants Warrant Certificates the Trustee shall issue receipts.
d. Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it, is subject to the provisions of Applicable Legislation, this section and of section 9.
e. The Trustee shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee to determine whether or not the Trustee shall take action with respect to any default.
Appears in 2 contracts
Samples: Warrant Indenture (Golden Star Resources LTD), Warrant Indenture (Golden Star Resources LTD)
Rights and Duties of Trustee. (i) Except during the continuance of an Event of Default,
(a) In the exercise Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth and correctness of the rights statements and duties prescribed certificates or conferred by opinions furnished to it and conforming to the terms requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(ii) In case an Event of Default has occurred and is continuing, the Trustee shall exercise that such of the rights and powers vested in it by this Indenture, and use the same degree of care, diligence care and skill that in its exercise, as a reasonably prudent trustee person would exercise in comparable circumstances. Except or use under the circumstances in the event conduct of such person's own affairs.
(iii) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a breach majority in principal amount of such standard the outstanding Notes, relating to the time, method and place of care, conducting any proceeding for exercising any remedy available to the Trustee, its directorsor exercising any trust or power conferred upon the Trustee, officersunder this Indenture with respect to the Notes.
(iv) Subject to TIA Sections 315(a) through (d):
(a) the Trustee may rely upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document;
(b) before the Trustee acts or refrains from acting, employeesit may require an Officers' Certificate or an Opinion of Counsel, shareholders and agents which shall conform to Section 11.04. The Trustee shall not be liable for any action taken it takes or omits to take in good faith in reliance on any documents that are, prima facie, properly executed; for the loss such certificate or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If opinion;
(c) the Trustee has retained an appropriate expert shall be under no obligation to exercise any of the rights or advisor with respect powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to any matter connected with its duties under this indenture, the Trustee may act reasonable security or refuse to act based on indemnity against the advice of costs, expenses and liabilities that might be incurred by it in compliance with such expert request or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, direction;
(d) the Trustee shall not be liable for any action it takes or refusal omits to act based on take in good faith that it believes to be authorized or within its rights or powers; provided that the advice of any such expert Trustee's conduct does not constitute negligence or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.bad faith;
(be) Subject to the standard no provision of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers unless indemnified as aforesaid.powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(df) The Trustee may, before commencing or at any time during whenever in the continuance administration of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants this Indenture the Trustee shall issue receiptsdeem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed), may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(g) the Trustee may consult with counsel and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(h) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or any Guarantor, personally or by agent or attorney;
(i) the Trustee may execute any of the trusts or powers hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(j) the Trustee may conclusively rely as to the identity and addresses of Holders and other matters contained therein on the register of the Notes maintained by the Registrar pursuant to Section 2.04 hereof and shall not be affected by notice to the contrary; and
(k) unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
Appears in 2 contracts
Samples: Indenture (Amtran Inc), Indenture (Amtran Inc)
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Warrantholders and shall exercise that the degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of careTrustee from, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for require any other action or failure person to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If indemnify the Trustee has retained an appropriate expert against, liability for its own negligence, wilful misconduct or advisor with respect bad faith.
(b) Subject only to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.28.2(a), the Trustee shall not be liable for bound to do or take any act, action or refusal to act based on proceeding for the advice enforcement of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs obligations of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations Company under this indenture Indenture unless and until it shall have received a Warrantholders' Request specifying the act, action or under any other related agreements. No recourse may be had or taken, directly or indirectly, against proceeding that the Trustee in its personal capacity.
(c) is requested to take. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and charges, expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 8.2 and of Section 8.3.
Appears in 2 contracts
Samples: Warrant Indenture (Agnico Eagle Mines LTD), Warrant Indenture (Gryphon Gold Corp)
Rights and Duties of Trustee. (a) In Except during the exercise continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth and correctness of the rights statements and duties prescribed certificates or conferred by opinions furnished to it and conforming to the terms requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise that such of the rights and powers vested in it by this Indenture, and use the same degree of care, diligence care and skill that in its exercise, as a reasonably prudent trustee person would exercise in comparable circumstances. Except or use under the circumstances in the event conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a breach majority in principal amount of such standard the outstanding Notes, relating to the time, method and place of care, conducting any proceeding for exercising any remedy available to the Trustee, its directorsor exercising any trust or power conferred upon the Trustee, officersunder this Indenture with respect to the Notes.
(d) Subject to TIA Sections 315(a) through (d):
(i) the Trustee may rely upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document;
(ii) before the Trustee acts or refrains from acting, employeesit may require an Officers' Certificate or an Opinion of Counsel, shareholders and agents which shall conform to Section 11.04. The Trustee shall not be liable for any action taken it takes or omits to take in good faith in reliance on any documents that are, prima facie, properly executed; for the loss such certificate or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If opinion;
(iii) the Trustee has retained an appropriate expert shall be under no obligation to exercise any of the rights or advisor with respect powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to any matter connected with its duties under this indenture, the Trustee may act reasonable security or refuse to act based on indemnity against the advice of costs, expenses and liabilities that might be incurred by it in compliance with such expert request or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, direction;
(iv) the Trustee shall not be liable for any action it takes or refusal omits to act based on take in good faith that it believes to be authorized or within its rights or powers; provided that the advice of any such expert Trustee's conduct does not constitute negligence or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.bad faith;
(bv) Subject to the standard no provision of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers unless indemnified as aforesaid.powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(dvi) The Trustee may, before commencing or at any time during whenever in the continuance administration of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants this Indenture the Trustee shall issue receiptsdeem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed), may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(vii) the Trustee may consult with counsel and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(viii) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or any Guarantor, personally or by agent or attorney;
(ix) the Trustee may execute any of the trusts or powers hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(x) the Trustee may conclusively rely as to the identity and addresses of Holders and other matters contained therein on the register of the Notes maintained by the Registrar pursuant to Section 2.04 hereof and shall not be affected by notice to the contrary; and
(xi) unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
Appears in 2 contracts
Samples: Indenture (American Trans Air Execujet Inc), Indenture (American Trans Air Execujet Inc)
Rights and Duties of Trustee. (a) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent trustee Trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of careforegoing, the Trustee, Trustee will be liable for its directors, officers, employees, shareholders and agents shall own wilful misconduct or gross negligence. The Trustee will not be liable for any action taken act or default on the part of any agent employed by it or a co-Trustee, or for having permitted any agent or co-Trustee to receive and retain any money payable to the Trustee, except as aforesaid.
(b) Nothing herein contained shall impose any obligation on the Trustee to see to or require evidence of the registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto or thereto, or for the perfection or maintenance of any security interest created hereunder.
(c) The Trustee shall not be:
(i) accountable for the use or application by the Issuer of the Notes or the proceeds thereof;
(ii) responsible to make any calculation with respect to any matter under this Indenture;
(iii) liable for any error in judgment made in good faith unless negligent in ascertaining the pertinent facts; or
(iv) responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; cyberterrorism; accidents; labor disputes; acts of civil or military authority and governmental action.
(d) The Trustee shall have the right to disclose any information disclosed or released to it if, in the reasonable opinion of the Trustee, after consultation with Counsel, it is required to disclose under any applicable laws, court order or administrative directions, or if, in the reasonable opinion of the Trustee, it is required to disclose to its regulatory authority. The 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.
(e) The Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on any documents that arewhose signature the Trustee is entitled to act, prima facieor refrain from acting, properly executed; under a specific provision of this Indenture.
(f) The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other similar electronic means in a form satisfactory to the Trustee from a Person purporting to be (and whom the Trustee, acting reasonably, believes in good faith to be) an authorized representative of the Issuer or a Holder, as sufficient instructions and authority of such party for the loss Trustee to act and shall have no duty to verify or disposition of monies; or confirm that Person is so authorized. The Trustee shall have no liability for any other action losses, liabilities, costs or failure expenses incurred by it as a result of such reliance upon, or compliance with, such instructions or directions, except to act by the extent any such losses, cost or expense are the direct result of gross negligence or willful misconduct on the part of the Trustee. The Issuer and the Holders agree: (i) to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach risk of trust. If the Trustee has retained an appropriate expert or advisor acting on unauthorized instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with respect the various methods of transmitting instructions to any matter connected with its duties under this indenture, the Trustee and that there may act or refuse be more secure methods of transmitting instructions than the method(s) selected by such party; and (iii) that the security procedures (if any) to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, followed in connection with the affairs its transmission of the Corporation or any other person for anything done or permitted instructions provide to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out it a commercially reasonable degree of anything done or permitted or omitted to be done protection in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any light of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidparticular needs and circumstances.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 2 contracts
Samples: Trust Indenture (Ascend Wellness Holdings, Inc.), Trust Indenture (Curaleaf Holdings, Inc.)
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall will act honestly and in good faith with a view to the best interests of the Warrantholders, and will exercise that degree of care, diligence and skill that a reasonably prudent warrant trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2foregoing, the Trustee shall not be liable for bound to give any notice or do or take any act, action or refusal proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to act based on do under the advice terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such expert notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or advisor which it is reasonable performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to conclude is within the expertise of such expert Trustee to determine whether or advisor not the Trustee shall take action with respect to giveany default.
(b2) Subject No provision of this Indenture will be construed to relieve the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal from liability for any debtsits own negligent act, liabilitiesnegligent failure to act, obligations, claims, demands, judgments, costs, charges wilful misconduct or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitybad faith.
(c3) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights right of the Trustee or the Warrantholders hereunder shall be conditional upon is on the Warrantholders furnishingcondition that, when required by notice to the Warrantholders by the Trustee, the Trustee is furnished by one or more Warrantholders with sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold it harmless the Trustee against the costs, charges and charges, expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None .
(4) No provision of the provisions contained in this Indenture shall will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidit is so indemnified.
(d5) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Warrant Certificates held by them, for which Warrants certificates the Trustee shall will issue receipts.
(6) Every provision of this Indenture that relieves the Trustee of liability or entitles it to rely on any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 10.3 and of Section 10.4.
(7) In this Indenture, whenever confirmations or instructions are required to be given to the Trustee in order to be valid, such confirmations and instructions shall be in writing.
Appears in 2 contracts
Samples: Warrant Indenture (Kinross Gold Corp), Warrant Indenture (Kinross Gold Corp)
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of care, the TrusteeTrustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to giveown wilful misconduct.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, acting to deposit with the Trustee the Special Warrants held by them, for which Special Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this section 10.2, section 10.3 and section 10.8. 144554\0512890.WP
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Special Shareholders and shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event No provision of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents this Indenture shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure construed to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If relieve the Trustee has retained an appropriate expert from, or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or require any other person to indemnify the Trustee against, liability for anything done its own negligence, wilful misconduct or permitted to be done by the Trusteebad faith. The Trustee shall not be subject bound to do or take any personal liability act, action or proceeding for the enforcement of any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution obligations of HII or the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations Corporation under this indenture Indenture unless and until it shall have received a Special Shareholders' Request specifying the act, action or under any other related agreements. No recourse may be had or taken, directly or indirectly, against proceeding which the Trustee in its personal capacity.
(c) is requested to take. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Special Shareholders hereunder shall be conditional upon the Warrantholders Special Shareholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) . The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the WarrantholdersSpecial Shareholders, at whose instance it is acting, to deposit with the Trustee the Warrants Special Shares held by them, for which Warrants Special Shares the Trustee shall issue receipts. Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of section and of section . The Trustee shall retain the right not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation which complies with the terms of this Indenture. Such documentation must not require the exercise of any discretion or independent judgment unless pursuant to the terms of this Indenture. In the event of any disagreement arising regarding the terms of this Indenture, the Trustee shall be entitled, at its option, to refuse to comply with any or all demands whatsoever until the dispute is settled either by agreement amongst the various parties or by a court of competent jurisdiction. Evidence, Experts and Advisers In addition to the reports, certificates, opinions and other evidence required by this Indenture, HII and the Corporation, as the case may be, shall furnish to the Trustee such additional evidence of compliance with any provision hereof in such form as may be prescribed by Applicable Legislation, or as the Trustee may reasonably require by written notice to HII or the Corporation. In the exercise of its rights and duties hereunder, the Trustee may, if it is acting in good faith, rely as the truth of the statements and the accuracy of the opinions expressed therein, upon statutory declarations, opinions, reports, written requests, consents, certificates or orders of HII or the Corporation, as the case may be, or other evidence furnished to the Trustee, provided that such evidence complies with Applicable Legislation and the Trustee examines the same and determines that such evidence complies with the applicable requirements of this Indenture. Whenever Applicable Legislation requires that evidence referred to in section_ be in the form of a statutory declaration, the Trustee may accept such statutory declaration in lieu of a certificate of HII or the Corporation, as the case may be, required by any provision hereof. Any such statutory declaration may be made by any officer of the HII or the Corporation as the case may be. Proof of the execution of an instrument in writing, including a Special Shareholders' Request, by any Special Shareholder may be made by the certificate of a notary public, or other officer with similar powers, that the person signing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution or in any other manner which the Trustee may consider adequate. The Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its duties hereunder and may pay reasonable remuneration for all services so performed by any of them, without taxation of costs of any counsel, and shall not be responsible for any misconduct on the part of any of them. Such remuneration is to be paid by HII subject to section<0- 95>.
Appears in 1 contract
Rights and Duties of Trustee. (a1) In exercising the exercise of powers and discharging the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best 67 -61- interests of the Debentureholders and exercise that degree of the care, diligence and skill that of a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givetrustee.
(b2) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject required to take notice or be deemed to have notice or actual knowledge of any personal liability for any debtsmatter hereunder, liabilitiesincluding an Event of Default, obligations, claims, demands, judgments, costs, charges unless the Trustee shall have received from the Corporation or expenses arising out of anything done or permitted or omitted to be done a Debentureholder written notice distinctly stating the matter in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against which the Trustee should have notice or actual knowledge and in its personal capacitythe absence of such notice, the Trustee may for all purposes of this Trust Indenture, conclusively assume that the Corporation is not in default hereunder and that no Event of Default has occurred.
(c3) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereofthereof except such as may arise from its negligence or bad faith. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d4) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceedingproceeding referred to in Section 13.2(3), require the Warrantholders, Debentureholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(5) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it, is subject to the provisions of Indenture Legislation, of this Section 13.2 and of Section 13.3.
Appears in 1 contract
Samples: Trust Indenture (Enron Corp/Or/)
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this IndentureAgreement, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in In the event absence of a breach of such standard of caregross negligence or fraud, the Trustee, its directors, officers, employees, shareholders Corporation shall indemnify and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If save harmless the Trustee has retained an appropriate expert from all loss, costs or advisor with respect damages it may suffer in administering the trusts of this Agreement. No provision of this Agreement shall be construed to any matter connected with its duties under this indenture, relieve the Trustee may act from liability for its own gross negligence or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givefraud.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Subscription Receiptholders hereunder shall be conditional upon the Warrantholders Subscription Receiptholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture Agreement shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Subscription Receiptholders at whose instance it is acting, acting to deposit with the Trustee trustee the Warrants Subscription Receipts held by them, for which Warrants Subscription Receipts the Trustee shall issue receipts.
(d) Every provision of this Agreement that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of the Applicable Legislation, of this Section 10.2 and of Sections 10.3 and 10.4.
Appears in 1 contract
Samples: Subscription Receipt Agreement (Catalyst Paper Corp)
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall will act honestly and in good faith with a view to the best interests of the Special Warrantholders, and will exercise that degree of care, diligence and skill that a reasonably prudent warrant trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2foregoing, the Trustee shall not be liable for bound to give any notice or do or take any act, action or refusal proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to act based on do under the advice terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such expert notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or advisor which it is reasonable performance of any of the 38 -37- representations, warranties, covenants, agreements or conditions contained therein. Any such notice shall in no way limit any discretion herein given to conclude is within the expertise of such expert Trustee to determine whether or advisor not the Trustee shall take action with respect to giveany default.
(b2) Subject No provision of this Indenture will be construed to relieve the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal from liability for any debtsits own negligent act, liabilitiesnegligent failure to act, obligations, claims, demands, judgments, costs, charges wilful misconduct or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitybad faith.
(c3) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights right of the Trustee or the Special Warrantholders hereunder shall be conditional upon is on the Warrantholders furnishingcondition that, when required by notice to the Special Warrantholders by the Trustee, the Trustee is furnished by one or more Special Warrantholders with sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold it harmless the Trustee against the costs, charges and expenses and liabilities to be reasonably incurred thereby and any loss and damage it may suffer by reason thereof. None .
(4) No provision of the provisions contained in this Indenture shall will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidit is so indemnified.
(d5) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Special Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Special Warrant Certificates held by them, for which Warrants certificates the Trustee shall will issue receipts.
(6) Every provision of this Indenture that relieves the Trustee of liability or entitles it to rely on any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section and of Section 9.3.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee and/or custodian would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of care, the TrusteeTrustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own wilful misconduct or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givebad faith.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, acting to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 9.2 and of Section 9.3.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Warrantholders and shall exercise that the degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of careTrustee from, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for require any other action or failure person to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If indemnify the Trustee has retained an appropriate expert against, liability for its own gross negligence, wilful misconduct or advisor with respect bad faith.
(b) Subject only to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2section 8.2(a), the Trustee shall not be liable for bound to do or take any act, action or refusal to act based on proceeding for the advice enforcement of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs obligations of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture Indenture unless and until it shall have received a Warrantholders' Request specifying the act, action or under any other related agreements. No recourse may be had or taken, directly or indirectly, against proceeding that the Trustee in its personal capacity.
(c) is requested to take. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and charges, expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this section 8.2 and of section 8.3.
Appears in 1 contract
Samples: Warrant Indenture (MDS Inc)
Rights and Duties of Trustee. (a1) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Trust Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Licenseholders and exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b2) Subject only to Subsection 10.1(1), the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Licenseholders hereunder shall be conditional upon the Warrantholders Licenseholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. thereof except such as may arise from its negligence, wilful misconduct or bad faith.
(3) None of the provisions contained in this Trust Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless funded and indemnified as aforesaid.
(d4) The Trustee may, before commencing shall not be bound to give any notice or at do or take any time during the continuance of any such act, action or proceeding, require proceeding by virtue of the Warrantholders, at whose instance powers conferred on it is acting, hereby unless and until it shall have been required so to deposit with do under the terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the Warrants held by themdefault desired to be brought to the attention of the Trustee, and in the absence of any such notice the Trustee may for which Warrants all purposes of this Trust Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee or the duties of the Trustee to determine whether or not the Trustee shall issue receiptstake action with respect to any default
(5) Notwithstanding anything in this Trust Indenture to the contrary, the Trustee shall disburse moneys according to this Trust Indenture only to the extent that such moneys have been deposited with it.
(6) At the request of the Trustee, any calculation required or provided for by the terms of this Trust Indenture will be determined and set out in writing by each of the Corporations and sent to the Trustee as soon as practicable.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Indenture, the Notes and the Security Documents, the Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent trustee Trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of careforegoing, the Trustee, Trustee will be liable for its directors, officers, employees, shareholders and agents shall own wilful misconduct or gross negligence. The Trustee will not be liable for any action taken act or default on the part of any agent employed by it or a co-Trustee, or for having permitted any agent or co-Trustee to receive and retain any money payable to the Trustee, except as aforesaid.
(b) Nothing herein contained shall impose any obligation on the Trustee to see to or require evidence of the registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto or thereto, including any Security Documents.
(c) The Trustee shall not be:
(i) accountable for the use or application by the Issuer of the Notes or the proceeds thereof;
(ii) responsible to make any calculation with respect to any matter under this Indenture, including the calculation of the conversion rate of the Series B Second Lien Notes into US dollars for any purpose;
(iii) liable for any error in judgment made in good faith unless negligent in ascertaining the pertinent facts; or
(iv) responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any Governmental Authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; cyberterrorism; accidents; labor disputes; acts of civil or military authority and governmental action.
(d) The Trustee shall have the right to disclose any information disclosed or released to it if, in the reasonable opinion of the Trustee, after consultation with Counsel, it is required to disclose under any Applicable Law, court order or administrative directions, or if, in the reasonable opinion of the Trustee, it is required to disclose to its regulatory authority. The 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.
(e) The Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on any documents that arewhose signature the Trustee is entitled to act, prima facieor refrain from acting, properly executed; under a specific provision of this Indenture.
(f) The Trustee shall have no responsibility for the loss preparation, filing or disposition recording of monies; any instrument, document or financing statement or for the perfection or maintenance of any security interest created hereunder.
(g) The Trustee will not be charged with knowledge of any default in the payment of any Existing Indebtedness, or of the existence of any default or Event of Default or any other fact that would prohibit the making of any payment of monies to or by the Trustee, or the taking of any other action by the Trustee, unless and until the Trustee has received written notice thereof from the Issuer, any Noteholder or failure the Collateral Agent. The Trustee will notify holders of Notes of such notice as soon as reasonably practicable after receipt thereof.
(h) The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other similar electronic means in a form satisfactory to the Trustee from a Person purporting to be (and whom the Trustee, acting reasonably, believes in good faith to be) an authorized representative of the Issuer or a Holder, as sufficient instructions and authority of such party for the Trustee to act and shall have no duty to verify or confirm that Person is so authorized. The Trustee shall have no liability for any losses, liabilities, costs or expenses incurred by it as a result of such reliance upon, or compliance with, such instructions or directions, except to the extent any such losses, cost or expense are the direct result of gross negligence or willful misconduct on the part of the Trustee. The Issuer and the Holders agree: (i) to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach risk of trust. If the Trustee has retained an appropriate expert or advisor acting on unauthorized instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with respect the various methods of transmitting instructions to any matter connected the Trustee and that there may be more secure methods of transmitting instructions than the method(s) selected by such party; and (iii) that the security procedures (if any) to be followed in connection with its duties transmission of instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(i) By their acceptance of the Notes, the Holders hereby designate and appoint the Trustee as the Holders’ agent under this indentureIndenture and the Security Documents, and by acceptance of the Notes the Holders hereby irrevocably authorizes the Trustee to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Trustee by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of this Indenture and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(j) By their acceptance of the Notes hereunder, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence Holders further authorize and skill set out in this Section 9.2, direct the Trustee shall not be liable for any action or refusal to act based on (i) enter into the advice of any such expert or advisor Security Documents to which it is reasonable to conclude is within party, whether executed on or after the expertise of such expert or advisor to give.
Issue Date, (bii) Subject to bind the standard of care Holders on the terms as set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in Security Documents and (iii) perform and observe its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitySecurity Documents.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 1 contract
Rights and Duties of Trustee.
(a) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Trust Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof, nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the Event of Default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture conclusively assume that no default has occurred in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee to determine whether or not the Trustee shall take action with respect to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitydefault.
(c) The Subject only to the immediately preceding subsection, the obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Debentureholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(e) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles the Trustee to rely upon any evidence submitted to it, is subject to the provisions of applicable legislation and of this Section 13.2 and of Section 13.3.
(f) No duty shall rest with the Trustee to determine compliance of the transferor or transferee with applicable securities laws. The Trustee shall be entitled to assume that all transfers are legal and proper.
Appears in 1 contract
Samples: Trust Indenture
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject only to subsection 9.3(1), the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Noteholders hereunder shall be conditional upon the Warrantholders Noteholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Noteholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Notes held by them, for which Warrants Notes the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Indenture Legislation, this section 11.3 and section 11.4.
(e) The Trustee shall not be bound to give any notice to do or take any act, action or proceeding in virtue of the powers conferred on it hereby unless and until it shall be required so to do under the terms hereof; nor, subject to any default which may come to the attention of the Trustee, shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of one Trustee, and in the absence of such notice, the Trustee may for all purposes of this Indenture conclusively assume that the Corporation is not in default hereunder and that no default has been made with respect to the payment of principal of or interest, if any, on Notes or in the observance or performance of any of the covenants, agreements, or conditions contained herein. The giving or the failure to give of any such notice shall in no way limit any discretion herein given to the Trustee to determine whether or not the Trustee shall take action with respect to any default.
(f) The Trustee shall incur no liability with respect to the delivery or non-delivery or any certificate or certificates whether delivered by hand, mail or any other means.
(g) The duties and obligations of the Trustee shall be determined solely by the provisions hereof and, accordingly, the Trustee shall not be responsible except for the performance of such duties and obligations as it has undertaken herein.
Appears in 1 contract
Samples: Note Indenture (Peru Copper Inc.)
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Debentureholders and shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of careTrustee from, or require any other person to indemnify the TrusteeTrustee against, liability for its directorsown negligence, officers, employees, shareholders and agents wilful misconduct or bad faith.
(2) The Trustee shall not be liable for bound to give any action taken in good faith in reliance on notice or do or take any documents that areact, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to act by do under the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture conclusively assume that no default has retained an appropriate expert been made in the observance or advisor performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given the Trustee to determine whether or not the Trustee shall take action with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse default.
(3) Subject only to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2Subsection 10.2(1), the Trustee shall not be liable for bound to do or take any act, action or refusal to act based on proceeding for the advice enforcement of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs obligations of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture Indenture unless and until it shall have received a Debentureholders' Request specifying the act, action or under any other related agreements. No recourse may be had or taken, directly or indirectly, against proceeding which the Trustee in its personal capacity.
(c) is requested to take. The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d4) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the WarrantholdersDebentureholders, at whose instance it is acting, to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(5) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 10.2 and of Section 10.3.
Appears in 1 contract
Rights and Duties of Trustee. (a1) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Trust Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Debentureholders and shall exercise that degree of the care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b2) Subject only to Subsection 13.2(1), the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Trust Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d3) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Debentureholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(4) The Trustee will not be in contravention of the provisions of Subsection 13.2(1) above if it acts and relies in good faith upon certificates, opinions, reports, resolutions or notices furnished pursuant to the provisions of this Article 13 or required by the Trustee to be furnished to it in the exercise of its rights and duties hereunder if such certificates, opinions, reports, resolutions or notices comply with the provisions of Sections 13.3 and 13.4 below, if applicable, and with any other applicable provisions of this Trust Indenture.
Appears in 1 contract
Rights and Duties of Trustee. (a) In Until the exercise actual delivery to the Shareholders of stock certificate(s) in exchange for the voting trust certificate, and until the surrender of the voting trust certificate for cancellation, the Trustee shall have the right, subject to the provisions of this paragraph hereinafter set forth, to exercise, in person or by his nominees or proxies, all Shareholder's voting rights and duties prescribed powers in respect of all shares of Common Stock deposited hereunder and as set forth below, and to take part in or conferred consent to any corporate or shareholders' action of any kind whatsoever. The right to vote shall include the right to vote for the election of directors, and in favor of or against any resolution or proposed action of any character whatsoever, which may be presented at any meeting or require the consent of shareholders of the Company. Without limiting such general right, it is understood that such action or proceeding may include, upon terms satisfactory to the Trustee or to his nominees or proxies thereto appointed by him, mortgaging, creating a security interest in, and pledging of all or any part of the property of the Company, the lease or sale of all or any part of the property of the Company, for cash, securities, or other property, the dissolution of the Company, and the consolidation, merger, reorganization, or recapitalization of the Company.
(b) In voting the stock held by the terms Trustee hereunder, either in person or by his nominees or proxies, the Trustee shall vote such stock in the same proportion as all of this Indenturethe Company's shareholders vote or on matter submitted to them, and shall otherwise, insofar as he may as a shareholder of the Company, take such part or action in respect to the management of its affairs as he may deem necessary so that he may be advised of the affairs and management of the Company; and in voting upon any matters that may come before him at any shareholders' meeting, the Trustee shall exercise that degree of carelike judgment and voting, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents but he shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor personally responsible with respect to any action taken pursuant to his vote so cast in any matter connected with its duties under this indenture, the Trustee may or act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted committed or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture Agreement, provided such commission or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacityomission does not amount to intentional misconduct on his part.
(c) The obligation Shareholders hereby release, waive and satisfy all claims, demands and causes of action, if any, that may arise out of or in connection with any acts or omissions of the Trustee made pursuant to commence this Agreement, except for acts or continue any act, action omissions that are finally determined by a court of competent jurisdiction to constitute gross negligence or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice intentional misconduct by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 1 contract
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Debentureholders as a whole and exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b2) Subject only to subsection 12.3(1), the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Debentureholders hereunder shall be conditional upon the Warrantholders Debentureholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d3) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Debentureholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Debentures held by them, for which Warrants Debentures the Trustee shall issue receipts.
(4) Every provision of this indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Indenture Legislation, this section 12.3 and section 12.
(5) The Trustee shall not be bound to give notice or to do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such notice, the Trustee may for all purposes of this indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given the Trustee to determine whether or not the Trustee shall take action with respect to any default.
Appears in 1 contract
Samples: Trust Indenture (MDC Partners Inc)
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in In the event absence of a breach of such standard of carenegligence or fraud, the TrusteeCorporation shall indemnify and save harmless the Trustee from all loss, costs or damages it may suffer in administering the trusts of this Indenture. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own negligence or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givefraud.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Warrant Holders hereunder shall be conditional upon the Warrantholders Warrant Holders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Warrant Holders at whose instance it is acting, acting to deposit with the Trustee trustee the Special Warrants held by them, for which Special Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of the Applicable Legislation, of this Section 10.2 and of Section 10.4. 33 -29-
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the The Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event No provision of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents this Indenture shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure construed to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If relieve the Trustee has retained an appropriate expert from liability for its own gross negligence, willful misconduct or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trusteebad faith. The Trustee shall not be subject bound to do or give any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges notice or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue take any act, action or proceeding for the purpose enforcement of enforcing any rights of the Trustee or obligations of the Warrantholders hereunder Obligors under this Indenture unless and until it shall be conditional upon have received a Holders’ Request specifying the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding which the Trustee is requested to take, nor shall the Trustee be required to take notice of any default hereunder, unless and an indemnity reasonably satisfactory until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the Trustee to protect and to hold harmless attention of the Trustee against and, in the costsabsence of any such notice, charges and expenses and liabilities to be incurred thereby and any loss and damage it the Trustee may suffer by reason thereof. None for all purposes of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability conclusively assume that no default has been made in the observance or performance of any of its duties the representations, debentures, covenants, agreements, or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit conditions contained herein. No duty shall rest with the Trustee to determine compliance of the Warrants held transferor or transferee with applicable securities laws. The Trustee shall be entitled to assume that all transfers are legal and proper. The Trustee shall be protected in acting and relying upon any written notice, opinions, reports, certificates, direction, instruction, order, certificate, confirmation, request, waiver, consent, receipt, statutory declaration or other paper or document (collectively referred to as “Documents”) furnished to it and signed by them, for which Warrants any Person required to or entitled to execute and deliver to the Trustee any such Documents in connection with this Indenture, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine. The Trustee is not to be appointed receiver or receiver and manager of the assets of the Obligors. Any corporation into which the Trustee is amalgamated or with which it is consolidated or to which all are substantially all of its corporate trust business is sold or is otherwise transferred or any corporation resulting from any consolidation or amalgamation to which the Trustee is a party shall issue receiptsbecome the successor Trustee under this Indenture, without the execution of any document or any further act; provided that such successor Trustee is a corporation qualified to carry on the business of a trust corporation in Canada or the province of Ontario and shall not have a material conflict of interest in its role as a fiduciary under this Debenture. The Trustee, in its personal or any other capacity, may buy, lend upon, and deal in securities of the Company and generally may contract and enter into financial transactions with the Company or any subsidiary of the Company without being liable to account for any profit made thereby.
Appears in 1 contract
Samples: Restructuring Agreement
Rights and Duties of Trustee. (a1) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Trust Indenture, the Trustee shall act honestly and in good faith with a view to the best interests of the Holders and exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b2) Subject only to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.Subsection 15.1
(c1) The the obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders Holders hereunder shall be conditional upon the Warrantholders Holders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. thereof except such as may arise from its negligence or bad faith.
(3) None of the provisions contained in this Trust Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d4) The Trustee may, before commencing shall not be bound to give any notice or at do or take any time during the continuance of any such act, action or proceeding, require proceeding by virtue of the Warrantholders, at whose instance powers conferred on it is acting, hereby unless and until it shall have been required so to deposit with do under the terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the Warrants held by themdefault desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Trust Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, for which Warrants warranties, covenants, agreement or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Trustee or the duties of the Trustee to determine whether or not the Trustee shall issue receiptstake action with respect to any default.
(5) Notwithstanding anything in this Trust Indenture to the contrary, the Trustee shall disperse moneys, shares or Units according to this Trust Indenture only to the extent that such moneys, shares or Units have been deposited with it.
(6) At the request of the Trustee, any calculation required or provided for by the terms of this Trust Indenture will be determined and set out in writing by MDC and sent to the Trustee as soon as practicable.
Appears in 1 contract
Samples: Trust Indenture (MDC Partners Inc)
Rights and Duties of Trustee. (a) In Until the exercise actual delivery to the holders of Voting Trust Certificates issued hereunder of the Securities in exchange therefor, and until the surrender of the Voting Trust Certificates for cancellation, no Shareholder shall have the right to vote the Securities held hereunder. The Trustee shall have the exclusive right to exercise all of the Shareholders' voting rights and duties prescribed or conferred by powers in respect of such shares deposited hereunder, as if the terms Trustee was the absolute owner thereof. Without limiting the generality of this Indenturethe foregoing, the Trustee shall exercise that degree of carehave the right to exercise, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss person or disposition of monies; or for any other action or failure to act by the Trustee's nominees or proxies, all Shareholders' rights and powers in respect of all the Securities deposited hereunder, including the right to vote and to take part in or consent to any corporate or Shareholders' action of any kind whatsoever. The right to vote shall include, without limitation, the right and duty to vote for any election or removal of directors, and in favor of or against any resolution or proposed action of any character whatsoever, which may be presented at any meeting, or require the consent of the shareholders of the Company, including, without limitation, the failure to compel in any way any former trustee to redress any breach dissolution or liquidation of trustthe Company. If In voting the Securities held by the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indentureVoting Trust Agreement, the Trustee may act shall vote to take such part or refuse action in respect to act based on the advice of such expert or advisor and, notwithstanding any provision management of the indentureCompany's affairs as the Trustee may deem necessary, including, without limitationto the end that the Trustee may be advised of the affairs of the Company and the management thereof; and in voting upon any matters that may come before the Trustee at any shareholders' meeting, the standard of careTrustee shall exercise the Trustee's best judgment, diligence and skill set out in this Section 9.2, but the Trustee shall not be personally liable for with respect to any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject taken pursuant to the standard of care set forth Trustee's votes so cast in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee matter or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted act committed or omitted to be done in respect of the execution of the duties of the office of under this Voting Trust Agreement, provided such commission or omission does not amount to willful misconduct on the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity's part.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 1 contract
Rights and Duties of Trustee. The rights and duties of the Trustee are as follows:
(a) In the exercise of the rights and duties prescribed or conferred by the terms of this IndentureAgreement, the Trustee shall will act honestly and in good faith with a view to the best interests of the Warrantholders and will exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in In the event absence of a breach of such standard of carenegligence or fraud, the TrusteeCompany shall indemnify and save harmless the Trustee from all loss, costs or damages it may suffer in administering the trusts of this Agreement. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own negligence or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.fraud;
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall under this Agreement will be conditional upon the Warrantholders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or to continue such the act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall Agreement will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.required in this subsection 12.2(b);
(dc) The Trustee may, before commencing action or proceeding, or at any time during the continuance of any such act, action or proceedingthereof, require the Warrantholders, Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Warrant Certificates held by them, for which Warrants Warrant Certificates the Trustee shall will issue receipts; and
(d) Every provision of this Agreement that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of the Applicable Legislation, of this section 12.2 and of section 12.4.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the The Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture or the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents Security Agreements shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure construed to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If relieve the Trustee has retained an appropriate expert from liability for its own gross negligence, willful misconduct or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trusteebad faith. The Trustee shall not be subject bound to do or give any personal liability notice or take any act, action, proceeding for the enforcement of any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution obligations of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations Obligor under this indenture Indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of Security Agreements unless and until it shall have received a Holders' Request specifying the Trustee to commence or continue any act, action or proceeding for which the purpose Trustee is requested to take, nor shall the Trustee be required to take notice of enforcing any rights default hereunder, unless and until notified in writing of such default, which notice shall specify the default desired to be brought to the attention of the Trustee or and, in the Warrantholders hereunder shall be conditional upon the Warrantholders furnishingabsence of any such notice, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None for all purposes of the provisions contained in this Indenture shall require and the Trustee to expend or to risk its own funds or otherwise to incur financial liability Security Agreements conclusively assume that no default has been made in the observance or performance of any of its duties the representations, debentures, covenants, agreements, or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit conditions contained herein. No duty shall rest with the Trustee to determine compliance of the Warrants held transferor or transferee with applicable securities laws. The Trustee shall be entitled to assume that all transfers are legal and proper. The Trustee shall be protected in acting and relying upon any written notice, opinions, reports, certificates, direction, instruction, order, certificate, confirmation, request, waiver, consent, receipt, statutory declaration or other paper or document (collectively referred to as "Documents") furnished to it and signed by them, for which Warrants any person required to or entitled to execute and deliver to the Trustee any such Documents in connection with this Indenture or the Security Agreements, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine. The Trustee is not to be appointed receiver or receiver manager of the assets of any Obligor. Any corporation into which the Trustee is amalgamated or with which it is consolidated or to which all or substantially all of its corporate trust business is sold or is otherwise transferred or any corporation resulting from any consolidation or amalgamation to which the Trustee is a party shall issue receiptsbecome the successor Trustee under this Indenture and the Security Agreements, without the execution of any document or any further act; provided that such successor Trustee is a corporation qualified to carry on the business of a trust corporation in Canada or the province of Ontario and shall not have a material conflict of interest in its role as a fiduciary under this Indenture. The Trustee, in its personal or any other capacity, may buy, lend upon, and deal in securities of the Company and generally make contracts and enter into financial transactions with the Company or any subsidiary of the Company without being liable to account for any profit made thereby.
Appears in 1 contract
Samples: Trust Indenture (Security Devices International Inc.)
Rights and Duties of Trustee. (a) In Until the exercise actual delivery to the holders of Voting Trust Certificates issued hereunder of the Securities in exchange therefor, and until the surrender of the Voting Trust Certificates for cancellation, no Shareholder shall have the right to vote the Securities held hereunder. The Trustee shall have the exclusive right to exercise all of the Shareholders' voting rights and duties prescribed or conferred by powers in respect of such shares deposited hereunder, as if the terms Trustee was the absolute owner thereof. Without limiting the generality of this Indenturethe foregoing, the Trustee shall exercise that degree of carehave the right to exercise, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss person or disposition of monies; or for any other action or failure to act by the Trustee's nominees or proxies, all Shareholders' rights and powers in respect of all the Securities deposited hereunder, including the right to vote and to take part in or consent to any corporate or Shareholders' action of any kind whatsoever. The right to vote shall include, without limitation, the right and duty to vote for any election or removal of directors (including, without limitation, a person who is an officer, director, employee or in any manner affiliated with Tracker or any of its affiliates), and in favor of or against any resolution or proposed action of any character whatsoever, which may be presented at any meeting, or require the consent of the shareholders of the Company, including, without limitation, the failure to compel in any way any former trustee to redress any breach dissolution or liquidation of trustthe Company. If In voting the Securities held by the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indentureVoting Trust Agreement, the Trustee may act shall vote to take such part or refuse action in respect to act based on the advice of such expert or advisor and, notwithstanding any provision management of the indentureCompany's affairs as the Trustee may deem necessary, including, without limitationto the end that the Trustee may be advised of the affairs of the Company and the management thereof; and in voting upon any matters that may come before the Trustee at any shareholders' meeting, the standard of careTrustee shall exercise the Trustee's best judgment, diligence and skill set out in this Section 9.2, but the Trustee shall not be personally liable for with respect to any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject taken pursuant to the standard of care set forth Trustee's votes so cast in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee matter or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted act committed or omitted to be done in respect of the execution of the duties of the office of under this Voting Trust Agreement, provided such commission or omission does not amount to willful misconduct on the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity's part.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaid.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except in No provision of this Indenture shall be construed to relieve the event of a breach of such standard of care, the TrusteeTrustee from liability for its own negligent action, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or own negligent failure to act by the Trusteeact, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act own wilful misconduct or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to givebad faith.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid.
(dc) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, acting to deposit with the Trustee the Class B Warrants held by them, for which Class B Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 9.02 and of Section 9.03.
Appears in 1 contract
Rights and Duties of Trustee. (a) In the exercise of the rights rights, duties and duties obligations prescribed or conferred by the terms of this Indenture, the Related Notes and the Security Documents, the Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent trustee Trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of careforegoing, the Trustee, Trustee will be liable for its directors, officers, employees, shareholders and agents shall own wilful misconduct or gross negligence. The Trustee will not be liable for any action taken act or default on the part of any agent employed by it or a co-Trustee, or for having permitted any agent or co-Trustee to receive and retain any money payable to the Trustee, except as aforesaid.
(b) Nothing herein contained shall impose any obligation on the Trustee to see to or require evidence of the registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto or thereto, including any Security Documents.
(c) The Trustee shall not be:
(i) accountable for the use or application by the Issuer of the Notes or the proceeds thereof;
(ii) responsible to make any calculation with respect to any matter under this Indenture;
(iii) liable for any error in judgment made in good faith unless negligent in ascertaining the pertinent facts; or
(iv) responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any Governmental Authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; cyberterrorism; accidents; labor disputes; acts of civil or military authority and governmental action.
(d) The Trustee shall have the right to disclose any information disclosed or released to it if, in the reasonable opinion of the Trustee, after consultation with Counsel, it is required to disclose under any Applicable Law, court order or administrative directions, or if, in the reasonable opinion of the Trustee, it is required to disclose to its regulatory authority. The 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.
(e) The Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on any documents that arewhose signature the Trustee is entitled to act, prima facieor refrain from acting, properly executed; under a specific provision of this Indenture.
(f) The Trustee shall have no responsibility for the loss preparation, filing or disposition recording of monies; any instrument, document or financing statement or for the perfection or maintenance of any security interest created hereunder.
(g) The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other action similar electronic means in a form satisfactory to the Trustee from a Person purporting to be (and whom the Trustee, acting reasonably, believes in good faith to be) an authorized representative of the Issuer or failure a Holder, as sufficient instructions and authority of such party for the Trustee to act and shall have no duty to verify or confirm that Person is so authorized. The Trustee shall have no liability for any losses, liabilities, costs or expenses incurred by it as a result of such reliance upon, or compliance with, such instructions or directions, except to the extent any such losses, cost or expense are the direct result of gross negligence or willful misconduct on the part of the Trustee. The Issuer and the Holders agree: (i) to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach risk of trust. If the Trustee has retained an appropriate expert or advisor acting on unauthorized instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with respect the various methods of transmitting instructions to any matter connected with its duties under this indenture, the Trustee and that there may act or refuse be more secure methods of transmitting instructions than the method(s) selected by such party; and (iii) that the security procedures (if any) to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2, the Trustee shall not be liable for any action or refusal to act based on the advice of any such expert or advisor which it is reasonable to conclude is within the expertise of such expert or advisor to give.
(b) Subject to the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, followed in connection with the affairs its transmission of the Corporation or any other person for anything done or permitted instructions provide to be done by the Trustee. The Trustee shall not be subject to any personal liability for any debts, liabilities, obligations, claims, demands, judgments, costs, charges or expenses arising out it a commercially reasonable degree of anything done or permitted or omitted to be done protection in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.
(c) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any light of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidparticular needs and circumstances.
(d) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, at whose instance it is acting, to deposit with the Trustee the Warrants held by them, for which Warrants the Trustee shall issue receipts.
Appears in 1 contract
Samples: Trust Indenture
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall will act honestly and in good faith with a view to the best interests of the Warrantholders, and will exercise that degree of care, diligence and skill that a reasonably prudent warrant trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2foregoing, the Trustee shall not be liable for bound to give any notice or do or take any act, action or refusal proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to act based on do under the advice terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such expert notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or advisor which it is reasonable performance of any of the representations, warranties, covenants, agreements or conditions contained therein. Any such notice shall in no way limit any discretion herein given to conclude is within the expertise of such expert Trustee to determine whether or advisor not the Trustee shall take action with respect to giveany default.
(b2) Subject No provision of this Indenture will be construed to relieve the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal from liability for any debtsits own negligent act, liabilitiesnegligent failure to act, obligations, claims, demands, judgments, costs, charges wilful misconduct or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitybad faith.
(c3) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights right of the Trustee or the Warrantholders hereunder shall be conditional upon is on the Warrantholders furnishingcondition that, when required by notice to the Warrantholders by the Trustee, the Trustee is furnished by one or more Warrantholders with sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold it harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None .
(4) No provision of the provisions contained in this Indenture shall will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidit is so indemnified.
(d5) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Share Purchase Warrant Certificates held by them, for which Warrants certificates the Trustee shall will issue receipts.
(6) Every provision of this Indenture that relieves the Trustee of liability or entitles it to rely on any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section 10.2 and of Section 10.3.
Appears in 1 contract
Rights and Duties of Trustee. (a) In By executing and delivering this Second Supplement, the Trustee accepts the duties and obligations of the Trustee expressly provided in this Second Supplement, but only upon the terms and conditions set forth in this Second Supplement, and no implied covenants shall be read herein against the Trustee;
(b) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice (electronic, telephonic, telecopy, written, or otherwise), request, direction, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(c) Any request or direction of a Bondholder, the City, or the Corporation mentioned herein shall be sufficiently evidenced by a writing originally signed by a Bondholder Representative, City Representative, or a Corporation Representative, as appropriate;
(d) When in the administration of this Second Supplement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a certificate of a Bondholder Representative, City Representative, or a Corporation Representative;
(e) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records, and premises of the City or the Corporation personally or by agent or attorney and to rely on any certifications provided thereby;
(f) The Trustee may consult with legal counsel, and the written advice of such counsel or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Trustee hereunder in good faith and in reliance thereon;
(g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Second Supplement at the request or direction of any of the Bondholders, unless such Bondholders shall have furnished to the Trustee security or indemnity satisfactory to it against the costs, expenses, and duties prescribed liabilities which might be incurred by it in compliance with such request or conferred by the terms direction;
(h) No provision of this Indenture, Second Supplement shall require the Trustee shall exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Except to expend or risk its funds or otherwise incur any financial liability in the event performance of a breach any of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse hereunder;
(i) Subject to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.27.16(b), the Trustee shall not be liable for any action it takes or refusal omits to act based on the advice of any such expert or advisor take in good faith which it is reasonable believes to conclude is be authorized or within the expertise of such expert its rights or advisor to give.powers;
(bj) Subject The permissive right of the Trustee to the standard of care set forth do things enumerated in this Section 9.2, none of Second Supplement or in the Trustee, any officer, director, shareholder, employee or agent thereof Lease Agreement shall not be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. construed as duties;
(k) The Trustee shall not be subject to any personal liability personally liable for any debtsdebts contracted or for damages to persons, liabilitiesor personal property injured or damaged, obligationsor for salaries or non-fulfillment of contracts, claims, demands, judgments, costs, charges or expenses arising out of anything done or permitted or omitted relating to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacity.Project;
(cl) The obligation of the Trustee shall not be bound to commence ascertain or continue any act, action or proceeding for the purpose of enforcing any rights of the Trustee or the Warrantholders hereunder shall be conditional upon the Warrantholders furnishing, when required by notice by the Trustee, sufficient funds inquire as to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of the obligations of the Corporation under this Second Supplement or of the Corporation, the City, or any other person under the Lease Agreement, and shall not have any liability for the contents of any document submitted to or delivered to any Bondholder in the nature of a preliminary or final placement memorandum, official statement, offering circular, or similar disclosure document;
(m) Upon the occurrence and continuance of an Event of Default, the Trustee shall execute its duties or under this Second Supplement with the same degree of care and skill a reasonably prudent man would utilize in the exercise conduct of any of its rights or powers unless indemnified as aforesaid.his affairs; and
(dn) The Trustee may, before commencing or at any time during shall not be accountable for the continuance use of any Parity Bonds authenticated or delivered hereunder after such act, action Parity Bonds shall have been delivered in accordance with instructions of the Corporation or proceeding, require for the Warrantholders, at whose instance it is acting, to deposit use by the Corporation of the proceeds from the sale of such Parity Bonds distributed from the Series 2020 Proceeds Account in accordance with the terms of this Second Supplement. The Trustee may become the Warrants held by them, for which Warrants Owner of the Trustee shall issue receiptsParity Bonds secured hereby with the same rights as any other Bondholder.
Appears in 1 contract
Samples: Trust Agreement
Rights and Duties of Trustee. (a1) In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Trustee shall will act honestly and in good faith with a view to the best interests of the Special Warrantholders, and will exercise that degree of care, diligence and skill that a reasonably prudent warrant trustee would exercise in comparable circumstances. Except in Subject to the event of a breach of such standard of care, the Trustee, its directors, officers, employees, shareholders and agents shall not be liable for any action taken in good faith in reliance on any documents that are, prima facie, properly executed; for the loss or disposition of monies; or for any other action or failure to act by the Trustee, including, without limitation, the failure to compel in any way any former trustee to redress any breach of trust. If the Trustee has retained an appropriate expert or advisor with respect to any matter connected with its duties under this indenture, the Trustee may act or refuse to act based on the advice of such expert or advisor and, notwithstanding any provision of the indenture, including, without limitation, the standard of care, diligence and skill set out in this Section 9.2foregoing, the Trustee shall not be liable for bound to give any notice or do or take any act, action or refusal proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to act based on do under the advice terms hereof; nor shall the Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Trustee and in the absence of any such expert notice the Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or advisor which it is reasonable performance of any of the representations, warranties, covenants, agreements or conditions contained therein. Any such notice shall in no way limit any discretion herein given to conclude is within the expertise of such expert Trustee to determine whether or advisor not the Trustee shall take action with respect to giveany default.
(b2) Subject No provision of this Indenture will be construed to relieve the standard of care set forth in this Section 9.2, none of the Trustee, any officer, director, shareholder, employee or agent thereof shall be subject to any liability whatsoever in tort, contract or otherwise, in connection with the affairs of the Corporation or any other person for anything done or permitted to be done by the Trustee. The Trustee shall not be subject to any personal from liability for any debtsits own negligent act, liabilitiesnegligent failure to act, obligations, claims, demands, judgments, costs, charges wilful misconduct or expenses arising out of anything done or permitted or omitted to be done in respect of the execution of the duties of the office of the Trustee. No property or assets of the Trustee, owned in its personal capacity or otherwise, will be subject to any levy, execution or other enforcement procedure with regard to any obligations under this indenture or under any other related agreements. No recourse may be had or taken, directly or indirectly, against the Trustee in its personal capacitybad faith.
(c3) The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of enforcing any rights right of the Trustee or the Special Warrantholders hereunder shall be conditional upon is on the Warrantholders furnishingcondition that, when required by notice to the Special Warrantholders by the Trustee, the Trustee is furnished by one or more Special Warrantholders with sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Trustee to protect and to hold it harmless the Trustee against the costs, charges and expenses and liabilities to be reasonably incurred thereby and any loss and damage it may suffer by reason thereof. None .
(4) No provision of the provisions contained in this Indenture shall will require the Trustee to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified as aforesaidit is so indemnified.
(d5) The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders, Special Warrantholders at whose instance it is acting, acting to deposit with the Trustee the Warrants Special Warrant Certificates held by them, for which Warrants certificates the Trustee shall will issue receipts.
(6) Every provision of this Indenture that relieves the Trustee of liability or entitles it to rely on any evidence submitted to it is subject to the provisions of Applicable Legislation, of this Section and of Section 10.3.
Appears in 1 contract
Samples: Special Warrant Indenture and Escrow Agreement (SMTC Corp)
