Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee: (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders. (b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. (c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts; (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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; (iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and (v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action. (d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1. (e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency. (f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 10 contracts
Sources: Supplemental Indenture (Blue Owl Capital Corp), Supplemental Indenture (Blue Owl Technology Finance Corp.), Supplemental Indenture (Blue Owl Capital Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The (ii)(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) Trustee, in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans;
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest; and
(vii) to conduct an auction of the Home Equity Loans pursuant to Section 9.02.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section 10.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 9 contracts
Sources: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-D), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2006-A), Pooling and Servicing Agreement (Chec Funding LLC)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Following the termination of Default known to the Trustee has occurred Servicer hereunder and is continuingpending the appointment of any other Person as successor Servicer, the Trustee (for this purpose, the term includes an affiliate thereof) is hereby obligated to perform the duties of the Servicer hereunder and shall, for such period, have all of the rights of the Servicer; it being expressly understood, however, by all parties hereto, and the Owners, agree, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer pursuant to Section 8.21, the Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or such resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgage payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this IndentureSection 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof;
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, exercise such of and
(vi) to enforce the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsMortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Certificate Insurer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof The Trustee shall require the Trustee not be required to expend or risk its own funds or otherwise incur any financial or other liability in for the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such risk or liability relates time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement;
(v) Subject to the performance other provisions of its ordinary servicesthis Agreement and without limiting the generality of this Section 10.1, including mailing the Trustee shall have no duty (A) to see any recording, filing, or depositing of notices under this IndentureAgreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate from funds available in the Certificate Account, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(vi) The Trustee shall not be accountable for the use or application of any funds paid to the Company or the Servicer in respect of the Mortgage Loans or withdrawn from the Principal and Interest Account or the Certificate Account by the Company or the Servicer; and
(vvii) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default or Event any of Default the events described in Sections 5.1(c), (d), (e), (f), or (g) Section 8.20 unless a Trust Responsible Officer assigned to and working in of the Corporate Trust Office Trustee shall have received written notice thereof or a Responsible Officer has actual knowledge thereof or unless written notice thereof. In the absence of any event which is in fact receipt of such an Event of Default or Default is received by notice, the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets may conclusively assume that no default or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as event described in this Section 6.18.20 has occurred.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays, counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 7 contracts
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1997-01), Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1996-4), Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1996-3)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Home Equity Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers Certificate Insurer or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 6 contracts
Sources: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp), Pooling and Servicing Agreement (Contisecurities Asset Funding Corp), Pooling and Servicing Agreement (Contimortgage Home Equity Trust 1997-5)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(vIndenture shall be subject to the protections, exculpations and limitations on liability afforded to an indenture trustee under the provisions of the Trust Indenture Act. For the purposes of Sections 315(b) in no event shall and 315(d)(2) of the Trust Indenture Act, the term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee be liable for special, indirect, punitive customarily performing functions similar to those performed by a Responsible Officer or consequential loss or damage (including lost profits) even if the Trustee has been advised any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 5 contracts
Sources: Indenture (Txu Corp /Tx/), Indenture (Txu Energy Co LLC), Indenture (Mdu Resources Group Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager stating that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) five Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 5 contracts
Sources: Indenture (NewStar Financial, Inc.), Indenture (NewStar Financial, Inc.), Indenture (NewStar Financial, Inc.)
Certain Duties and Responsibilities. (a) Except Until the principal and interest on each Note is paid in full, the Servicer (the Special Servicer during the occurrence and continuance of an Event a Loan Event) shall proceed diligently to collect all payments called for under the terms and provisions of Default known the Security Documents and this Indenture, and in doing so the Servicer (the Special Servicer during the occurrence and continuance of a Loan Event) shall follow such collection procedures as are in accordance with the Servicing Standards. The foregoing responsibilities shall include, without limitation, making, at the expense of the Issuer, timely filings of any Uniform Commercial Code continuation statements and any refilings of any Security Document as necessary to preserve the liens created thereby to the Trustee:
(i) extent not so done by the Issuer or the Underlying Borrowers as provided herein or in the other Security Documents. The Servicer and Special Servicer each agree that it will notify the Issuer and the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 with a copy to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that Servicer in the case of the Special Servicer) in writing of any such certificates filings, fees, taxes or opinions which by other similar payments required in connection with the satisfaction of the obligations of the Issuer or the Underlying Borrowers under this Indenture and the other Security Documents known to any provision hereof are specifically required to be furnished to officer or employee of the Trustee, the Trustee shall be under a duty to examine the same to determine whether Servicer or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days Special Servicer actively involved in the case administration of an Officer’s certificate furnished by the Collateral Manager, notify Note Indebtedness or the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersUnderlying Loans.
(b) In case an Event The Servicer (the Special Servicer during the occurrence and continuance of Default known a Loan Event) shall also give such directions, make such determinations and take such other actions pursuant to the Trustee has occurred Mezzanine Cash Management Agreement and is continuing, the Trustee shall, prior to Cash Management Agreement as the receipt of directions, if any, from a Majority assignee of the Controlling ClassMezzanine Lender or Mortgage Lender, as applicable, thereunder, as are in the best interests of (as determined by the Servicer or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill Special Servicer in its exercise, as a prudent Person would exercise or use under reasonable judgment) the circumstances Holders and in accordance with the conduct of such Person’s own affairsServicing Standards.
(c) No provision hereof shall be construed Upon an acceleration of the Notes pursuant to relieve Section 5.2, subject to the Trustee from liability for its own negligent actionrights of the Majority Holders, its own negligent failure set forth in Section 5.12(a), and subject to actSection 7.7 hereof, or its own willful misconduct, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust OfficerSpecial Servicer may, unless it shall be proven that the Trustee was negligent Event of Default preceding such acceleration is an Event of Default occurring on the Maturity Date, in ascertaining which case the pertinent facts;
(iii) the Trustee shall not be liable Special Servicer shall, initiate foreclosure proceedings with respect to any action taken or omitted to be taken by it in good faith in accordance the Indenture Collateral and immediately thereafter with the direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating respect to the timeUnderlying Collateral; PROVIDED, method and place of conducting any Proceeding for any remedy available to HOWEVER, that the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance Special Servicer will not convert ownership of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates Underlying Collateral to the performance Trustee or its nominee on behalf of its ordinary services, including mailing the Holders unless and until the Special Servicer has complied with the terms of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this IndentureSubject to the rights of the Majority Holders, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.12(a), (d), (e), (f), or (g) unless a Trust Officer assigned if prior to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such Maturity Date an Event of Default has occurred and is continuing or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) reasonably foreseeable and the Rating Agency.
(f) Whether or not therein expressly so providedSpecial Servicer determines in accordance with the Servicing Standards that a modification, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.waiver or
Appears in 4 contracts
Sources: Indenture and Servicing Agreement (Gotham Golf Corp), Indenture and Servicing Agreement (Gotham Golf Corp), Indenture and Servicing Agreement (Gotham Golf Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans;
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest; and
(vii) to conduct an auction of the Home Equity Loans pursuant to Section 9.02.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section l0.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002 B), Pooling and Servicing Agreement (Chec Funding LLC Centex Home Equity Loan Trust 2002 D), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002-C)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
Neither (i) the Trustee undertakes to perform Rights Agent nor (ii) the Shareholder Representative, the Shareholder Representative’s direct or indirect holders of Equity Interests, any individual member of the committee that comprises or controls the Shareholder Representative or, as applicable, any of their respective managers, directors, officers, employees, agents or other representatives (such duties and only such duties as are specifically set forth herein, and no implied covenants or obligations shall be read into Persons described in this Indenture against the Trustee; and
clause (ii) in the absence of bad faith on its parttheir capacities as such, the Trustee may conclusively rely, as “Shareholder Representative Persons”) shall have any liability or responsibility to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case any Person (A) of any such certificates kind whatsoever for or opinions which by in respect of its performance of 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 duties imposed hereunder or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officeractions taken, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken suffered or omitted to be taken in connection with this Agreement (including, in the case of the Rights Agent, its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder), (B) for any acts or omissions of the other parties hereto or (C) for damages, losses or expenses arising out of this Agreement, except (in the case of each of the foregoing clauses) to the extent of their gross negligence, bad faith or willful or intentional misconduct (each as determined by it a final judgment of a court of competent jurisdiction). No Shareholder Representative Person shall have any duties, fiduciary or otherwise, under this Agreement except the duty to act in good faith in accordance with the direction and except as expressly set forth herein. No provision of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof Agreement shall require the Trustee Rights Agent or any Shareholder Representative Person to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenturepowers. For purposes of determining this Section 3.1 and Sections 3.2, 3.3 and 7.5 below, the Trusteeterm “Rights Agent” shall include the Rights Agent’s responsibility and liability hereundermanagers, whenever reference is made herein to directors, officers, employees, agents or other representatives in their capacity as such an Event and, for the avoidance of Default or a Defaultdoubt, such reference the Rights Agent shall be construed to refer only to such an Event liable for breaches of Default this Agreement by the Rights Agent’s managers, directors, officers, employees, agents or Default of which the Trustee is deemed to have notice as described in this Section 6.1other representatives.
(eb) Upon The Shareholder Representative shall have the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice exclusive authority to act on behalf of the Holders in enforcing any of their rights hereunder, including the delivery of a Notice of Objection, statement of Objections and negotiation. The Shareholder Representative shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve material expense. All rights of action under this Agreement may be (and shall only be) enforced by the Shareholder Representative, and any action, suit or proceeding instituted by the Shareholder Representative shall be brought in its name as Shareholder Representative on behalf of the Holders, and any recovery of judgment shall be for the ratable benefit of all the Holders, as their names respective rights or interests may appear in the Register or the Share CVR Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 4 contracts
Sources: Contingent Value Rights Agreement (Safeway Stores 42, Inc.), Contingent Value Rights Agreement (Albertsons Companies, Inc.), Contingent Value Rights Agreement (Safeway Inc)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(vIndenture shall be subject to the protections, exculpations and limitations on liability afforded to an indenture trustee under the provisions of the Trust Indenture Act. For the purposes of Sections 315(b)(2) in no event shall and 315(d)(2) of the Trust Indenture Act, the term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice-chairman of the board of directors, the chairman or vice-chairman of the executive committee of the board of directors, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee be liable for special, indirect, punitive customarily performing functions similar to those performed by a Responsible Officer or consequential loss or damage (including lost profits) even if the Trustee has been advised any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 4 contracts
Sources: Indenture (Txu Europe Funding I L P), Indenture (Texas Utilities Co /Tx/), Indenture (Texas Utilities Co /Tx/)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a the Majority of the Controlling ClassNoteholders, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section (c) shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a the Majority Noteholders (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount available for payment to the Trustee pursuant to Section 6.7(a) on the immediately succeeding Payment Date net of the amounts specified in Section 6.7(a), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive indirect or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), 5.1(e) or (g5.1(i) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating AgencyNote Registers).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 4 contracts
Sources: Indenture (CM Finance Inc), Indenture (CM Finance Inc), Indenture (CM Finance Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a the Majority of the Controlling ClassNoteholders, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section (c) shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a the Majority Noteholders (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount available for payment to the Trustee pursuant to Section 6.7(a) on the immediately succeeding Payment Date net of the amounts specified in Section 6.7(a), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive indirect or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d5.1(d), (e5.1(e), (f5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(j) or (g5.1(k) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating AgencyNote Registers).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 3 contracts
Sources: Eighth Supplemental Indenture (Investcorp Credit Management BDC, Inc.), Supplemental Indenture (CM Finance Inc), Indenture (CM Finance Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c5.1(b), (c), (d), or (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Issuer or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and post such notice to the Rating AgencyTrustee internet website.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 3 contracts
Sources: Indenture (Monroe Capital Income Plus Corp), Indenture (Monroe Capital Income Plus Corp), Indenture (Monroe Capital Income Plus Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 3 contracts
Sources: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II), Indenture and Security Agreement (Blue Owl Technology Income Corp.), Indenture and Security Agreement (Blue Owl Capital Corp II)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Seller or the same if such certificate or opinion does not conformDepositor hereunder. If a corrected form shall any such instrument is found not have been delivered to conform in any material respect to the Trustee within 15 days after such notice from the Trusteerequirements of this Agreement, the Trustee shall so notify the Holders.
(b) In case an Owners of the Certificates of such instrument in the event that the Trustee, after so requesting, does not receive a satisfactorily corrected instrument. Notwithstanding the foregoing, if a Servicer Termination Event of Default known to which a responsible officer of the Trustee shall have actual knowledge has occurred and is continuinghas not been cured or waived, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, shall exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section 10.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Officer assigned to and working Estate from funds available in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Certificate Account.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1997-3), Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1998 5), Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1998-1)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Loan Obligation Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Loan Obligation Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel, Independent accountants and experts in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Loan Obligation Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f5.1(h), 5.1(i) or (g5.1(j) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Sections 6.1(a), (b), (c), (d) and (e).
(g) The Trustee shall, upon reasonable prior written notice, permit the Issuer, the Co-Issuer, the Loan Obligation Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
Appears in 3 contracts
Sources: Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Loan Obligation Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Loan Obligation Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Loan Obligation Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f5.1(h), 5.1(i) or (g5.1(j) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Sections 6.1(a), (b), (c), (d) and (e).
(g) The Trustee shall, upon reasonable prior written notice, permit the Issuer, the Co-Issuer, the Loan Obligation Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
Appears in 3 contracts
Sources: Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(v) in no event Indenture shall be subject to the protections, exculpations and limitations on liability afforded to the Trustee be liable for specialunder the provisions of the Trust Indenture Act. For the purposes of Sections 315(b)(2) and 315(d)(2) of the Trust Indenture Act, indirectthe term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice-chairman of the board of directors, punitive the chairman or consequential loss vice-chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or damage (including lost profits) even if assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee has been advised customarily performing functions similar to those performed by a Responsible Officer or any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 3 contracts
Sources: Indenture (Txu Europe Funding I L P), Indenture (For Unsecured Subordinated Debt Securities) (Txu Europe Funding I L P), Indenture (Txu Eastern Holdongs LTD)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
Neither (i) the Trustee undertakes to perform Rights Agent nor (ii) the Shareholder Representative, the Shareholder Representative’s direct or indirect holders of Equity Interests, any individual member of the committee that comprises or controls the Shareholder Representative or, as applicable, any of their respective managers, directors, officers, employees, agents or other representatives (such duties and only such duties as are specifically set forth herein, and no implied covenants or obligations shall be read into Persons described in this Indenture against the Trustee; and
clause (ii) in the absence of bad faith on its parttheir capacities as such, the Trustee may conclusively rely, as “Shareholder Representative Persons”) shall have any liability or responsibility to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case any Person (A) of any such certificates kind whatsoever for or opinions which by in respect of its performance of 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 duties imposed hereunder or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officeractions taken, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken suffered or omitted to be taken in connection with this Agreement (including, in the case of the Rights Agent, its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder), (B) for any acts or omissions of the other parties hereto or (C) for damages, losses or expenses arising out of this Agreement, except (in the case of each of the foregoing clauses) to the extent of their own gross negligence, bad faith or willful or intentional misconduct (each as determined by it a final judgment of a court of competent jurisdiction). No Shareholder Representative Person shall have any duties, fiduciary or otherwise, under this Agreement except the duty to act in good faith in accordance with the direction and except as expressly set forth herein. No provision of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof Agreement shall require the Trustee Rights Agent or any Shareholder Representative Person to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenturepowers. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.13.1 and Sections 3.2, 3.3 and 7.5 below, the term “Rights Agent” shall include the Rights Agent’s managers, directors, officers, employees, agents or other representatives in their capacity as such.
(eb) Upon The Shareholder Representative shall have the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice exclusive authority to act on behalf of the Holders in enforcing any of their rights hereunder, including the delivery of a Notice of Objection, statement of Objections and negotiation. The Shareholder Representative shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve material expense. All rights of action under this Agreement may be (and shall only be) enforced by the Shareholder Representative, and any action, suit or proceeding instituted by the Shareholder Representative shall be brought in its name as Shareholder Representative on behalf of the Holders, and any recovery of judgment shall be for the ratable benefit of all the Holders, as their names respective rights or interests may appear in the Register or the Share CVR Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 3 contracts
Sources: Contingent Value Rights Agreement (Capstone Holding Corp.), Contingent Value Rights Agreement (Capstone Therapeutics Corp.), Contingent Value Rights Agreement
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The (ii)(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) Trustee, in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section 10.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-A), Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-C), Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-B)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(v) in no event Indenture shall be subject to the protections, exculpations and limitations on liability afforded to the Trustee be liable for specialunder the provisions of the Trust Indenture Act. For the purpose of Section 315(d)(2) of the Trust Indenture Act, indirectthe term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice-chairman of the board of directors, punitive the chairman or consequential loss vice-chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or damage (including lost profits) even if assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee has been advised customarily performing functions similar to those performed by a Responsible Officer or any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 2 contracts
Sources: Indenture (Txu Capital Iv), Indenture (Txu Electric Capital Viii)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The (ii)(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) Trustee, in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due on sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans;
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest; and
(vii) to conduct an auction of the Home Equity Loans pursuant to Section 9.02.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section 10.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2004-D), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2004-C)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans;
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest; and
(vii) to conduct an auction of the Home Equity Loans pursuant to Section 9.02.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section l0.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002-A), Pooling and Servicing Agreement (Chec Funding LLC)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders and the Loan Agent.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs[Reserved].
(c) No provision hereof of this Indenture or any other Transaction Documents 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Co-Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, incidental, punitive or consequential loss or damage (including but not limited to diminution in value or lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Issuers or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager or the Collateral Agent that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Collateral Agent, the Loan Agent and the Holders (as their names appear in the Note Register or the Share Loan Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1 or Section 6.3.
(g) Neither the Trustee nor the Calculation Agent shall have any responsibility or liability for the selection of an alternative rate (including a Benchmark Replacement) or determination thereof, or any liability for any failure or delay in performing its duties hereunder as a result of the unavailability of a reference rate pursuant to this Indenture.
(h) In order to comply with the USA PATRIOT Act, including Section 326 thereof, the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, the Co-Issuers and each of the parties to the other Transaction Documents agree to provide to the Trustee upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with the USA PATRIOT Act.
(i) The Trustee shall have no responsibility or liability for (i) determining or verifying whether the conditions to a Bankruptcy Exchange are satisfied or (ii) appointing or performing the duties of a Partnership Representative.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Silver Point Specialty Lending Fund), Indenture and Security Agreement (Silver Point Specialty Lending Fund)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known with respect to the Trustee:Securities of any series,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture with respect to the Securities of such series and all other series, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that 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 substantially conform to the requirements hereof and shall promptly, of this Indenture (but in any event within three need not confirm or investigate mathematical calculations or other facts stated therein); and
(3iii) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the HoldersCompany or the Holders of any series of Outstanding Securities in accordance with Section 7.12 of this Indenture.
(b) In case an Event of Default known to the Trustee has occurred and is continuingcontinuing with respect to the Securities of any series, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, shall exercise such of the rights and powers vested in it by this IndentureIndenture with respect to the Securities of such series, and use the same degree of care and skill in its their exercise, as a prudent Person man would exercise or use under the circumstances in the conduct of such Person’s his own affairs.
(c) No provision hereof 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 sub-Section Subsection shall not be construed to limit the effect of sub-Section Subsection (a) of this Section 6.18.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in respect of the Securities of any series in good faith in accordance with the direction of the Issuers or the Collateral Manager Holders of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) principal amount of the Controlling Class (or other Class if required or permitted by the terms hereof), Outstanding Securities of such series pursuant to Section 7.12 relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;; and
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or other liability otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionit.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.18.01.
Appears in 2 contracts
Sources: Indenture (Expedia Group, Inc.), Indenture (Orbitz LLC)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section sub‑Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 2 contracts
Sources: Indenture and Security Agreement (Owl Rock Capital Corp), Indenture and Security Agreement (Owl Rock Capital Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate 's Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f), 5.1(h) or (g5.1(i) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1(a), (b), (c), (d) and (e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Collateral Manager or the Rating Agencies, during the Trustee's normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee's actions, as such actions relate to the Trustee's duties with respect to the Notes, with the Trustee's officers and employees responsible for carrying out the Trustee's duties with respect to the Notes.
Appears in 2 contracts
Sources: Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known In addition to the Trusteeduties and responsibilities provided for herein, the Regular Trustees shall have the following exclusive duties:
(i) to negotiate, execute and deliver the Trustee undertakes Sponsor Agreement or any amendment thereto on behalf of the Trust (which may be executed by any one Regular Trustee);
(ii) to perform such maintain bank accounts, brokerage accounts and other custody accounts that receive Trust income and receipts from which Trust expenditures and distributions are disbursed;
(iii) to maintain the Trust Property;
(iv) to maintain Trust records;
(v) to maintain an office for Trust business;
(vi) to originate, facilitate and review Trust reports and other Trust communications;
(vii) to execute documents and authorize Trust account transactions;
(viii) to retain accountants, attorneys, agents and other advisors in connection with its duties under this Agreement;
(ix) to file reports and only such duties returns on behalf of the Trust with government agencies to the extent required by applicable law and as are specifically set forth herein, and no implied covenants or obligations shall be read into this Indenture against directed in writing by the TrusteeSponsor; and
(iix) in the absence of bad faith on its part, the Trustee may conclusively rely, to perform such other actions as are necessary to the truth effect any of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersforegoing duties.
(b) In case an Event The duties and responsibilities of Default known the Trustees shall be as provided by this Agreement. Except as provided in Section 2.8 or other express provisions hereof, the Sponsor and the Trustees hereby acknowledge and agree that the Trustees are authorized, directed and instructed to act as specifically authorized in writing by the Sponsor. Any written instructions, notwithstanding any error in the transmission thereof or that such instructions may not be genuine, shall, as against the Sponsor and in favor of the Trustees, be conclusively deemed to be valid instructions from the Sponsor to the Trustees for the purposes of this Agreement, if believed in good faith by the Trustees to be genuine and if not otherwise insufficient on the face of such written instructions; provided, however, that a Trustee in its discretion may decline to act upon any instructions where they are not received by such Trustee in sufficient time for such Trustee to act upon or in accordance with such instructions, where such Trustee has occurred reasonable grounds for concluding that the same have not been accurately transmitted or are not genuine or where such Trustee believes in good faith that complying with such instructions is contrary to applicable law or might subject such Trustee to any liability. If a Trustee declines to act upon any instructions for any reason set out in the preceding sentence, it shall notify (and is continuingprovide reasonable detail to) the Sponsor and the other Trustees in writing forthwith after it so declines. In addition, the Delaware Trustee shallshall not be required to take or refrain from taking any action if the Trustee shall have determined, prior or shall have been advised by counsel, that such performance is likely to involve the Delaware Trustee in personal liability or is contrary to the receipt terms of directionsthis Agreement, if any, from any other document to which the Trust is a Majority of the Controlling Class, party or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsotherwise contrary to law.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee The Trustees shall not be liable for any error act or omission in the course of judgment made or connected with their performance hereunder, except only that each Trustee shall be subject to liability and assume the entire responsibility for direct damages suffered by the Sponsor or any other Person occasioned by such Trustee’s own gross negligence or willful misconduct or the gross negligence or willful misconduct of any of such Trustee’s directors, officers or employees in the rendering of its performance hereunder, as determined by a court of competent jurisdiction.
(d) The Trustees shall incur no liability to anyone in acting upon any document, including any certified items referenced herein, reasonably believed by them to be genuine (which is not insufficient on its face) and to have been signed by the proper Person or Persons, including (i) written instructions from the Sponsor, and (ii) a certified copy of a resolution of the Board of Directors or other governing body of any corporate party, which shall be conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Trustees may for all purposes hereof rely on a certificate, signed by the Sponsor, as to such fact or matter, and such certificate, if relied upon by the Trustees in good faith by a Trust Officerfaith, unless it shall be proven that constitute full protection to the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to Trustees for any action taken or omitted to be taken by it them in good faith in accordance with the direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in reliance thereon. In no event shall the Trustee Trustees be liable to any Persons for (A) acting in accordance with instructions from the Sponsor, (B) any damages in the nature of special, indirect, punitive indirect or consequential damages, however styled, including, without limitation, lost profits, or for any losses due to forces beyond the control of such Trustee, including, without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or damage malfunctions of utilities, communications or computer (including lost profitssoftware and hardware) even if services provided to the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), Trustees by third parties or (gC) unless a Trust Officer assigned to and working the acts or omissions of their nominees, correspondents, designees, agents or subagents appointed by them in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1good faith.
(e) Upon In the Trustee receiving written notice event that the Trustees are unsure of the course of action to be taken by them hereunder, the Trustees may request instructions from the Collateral Manager Sponsor as to such course of action to be taken. In the event that an event constituting “Cause” has occurredno instructions are provided within the time requested by the Trustees, they shall have no duty or liability for their failure to take any action or for any action they take in good faith and in accordance with the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agencyterms hereof.
(f) Whether In the exercise or administration of the trusts hereunder, the Delaware Trustee may, at the expense of the Trust, consult with counsel, accountants and other experts, and it shall not therein expressly so providedbe liable for anything done, every provision suffered or omitted in good faith by it in accordance with the advice or opinion of this Indenture any such counsel, accountants or other experts. For the avoidance of doubt, the Delaware Trustee shall have no responsibility for any tax matters relating to the conduct or affecting Trust. The parties hereto hereby irrevocably waive, to the liability fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding against the Delaware Trustee arising out of or affording protection relating to this Trust Agreement or the Trustee shall be subject to the provisions of this Section 6.1transactions contemplated hereby.
Appears in 2 contracts
Sources: Trust Agreement (Compass Group Diversified Holdings LLC), Trust Agreement (Compass Group Diversified Holdings LLC)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee The Class A-1R Note Agent undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; andClass A-1R Note Agent.
(iib) Upon certificates and other notices furnished to the Class A-1R Note Agent and conforming to the requirements of this Agreement, the Class A-1R Note Agent may, in the absence of bad faith on its part, the Trustee may conclusively rely, rely as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that that, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the TrusteeClass A-1R Note Agent, the Trustee Class A-1R Note Agent shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Agreement and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s officer's certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not so conform. If a corrected form shall not have been delivered to the Trustee Class A-1R Note Agent within 15 days after such notice from the TrusteeClass A-1R Note Agent, the Trustee Class A-1R Note Agent shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuingIssuer, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights Collateral Manager and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairseach Class A-1R Noteholder.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee Class A-1R Note Agent from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsections (a) and (b) of this Section 6.16.02;
(ii) the Trustee Class A-1R Note Agent shall not be liable for any error of judgment made in good faith by a Trust Officerany of its officers, unless it shall be proven that the Trustee Class A-1R Note Agent was grossly negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Agreement shall require the Trustee Class A-1R Note Agent to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indentureit; and
(viv) in no event shall the Trustee Class A-1R Note Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Trustee Class A-1R Note Agent has been advised of the likelihood of such damages and regardless of the form of such action.
(d) For all purposes under this IndentureAgreement, the Trustee Class A-1R Note Agent shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in an officer of the Corporate Trust Office Class A-1R Note Agent has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Class A-1R Note Agent.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee Class A-1R Note Agent shall be subject to the provisions of this Section 6.16.02. The Class A-1R Note Agent shall be afforded the same protections and benefits (including the right to rely on any written document delivered to the Class A-1R Note Agent under this Agreement) as that afforded to the Trustee pursuant to Section 6.3 of the Indenture (but in no event shall Section 6.1(b) of the Indenture apply).
(f) For all purposes under this Agreement, the Trustee shall be afforded the same protections and benefits under this Agreement as that afforded to the Trustee pursuant to Article VI of the Indenture.
Appears in 2 contracts
Sources: Class a 1r Note Purchase Agreement (Garrison Capital Inc.), Class a 1r Note Purchase Agreement (Garrison Capital Inc.)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(vIndenture shall be subject to the protections, exculpations and limitations on liability afforded to an indenture trustee under the provisions of the Trust Indenture Act. For the purposes of Sections 315(b) in no event shall and 315(d)(2) of the Trust Indenture Act, the term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee be liable for special, indirect, punitive customarily performing functions similar to those performed by a Responsible Officer or consequential loss or damage (including lost profits) even if the Trustee has been advised any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 2 contracts
Sources: Indenture (For Unsecured Debt Securities) (Oncor Electric Delivery Co), Indenture (Mdu Resources Group Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee is hereby directed to accept and acknowledge the E.U. Risk Retention Letter.
(h) The Trustee shall have no duty to monitor or verify whether any Holder (or beneficial owner) is a Section 13 Banking Entity.
Appears in 2 contracts
Sources: Supplemental Indenture (GOLUB CAPITAL BDC, Inc.), Indenture (GOLUB CAPITAL INVESTMENT Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 on their face they substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Sellers or the same Depositor hereunder. Notwithstanding the foregoing, if such certificate or opinion does not conform. If a corrected form shall not have been delivered to Servicer Termination Event of which an Authorized Officer of the Trustee within 15 days after such notice from the Trusteeshall have actual knowledge has occurred and has not been cured or waived, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due on sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the Home Equity Loans;
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest; and
(vii) to conduct an auction of the Home Equity Loans pursuant to Section 9.02.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section l0.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof other governmental charge or unless written notice any lien or encumbrance of any event which is in fact such an Event kind owing with respect to, assessed or levied against, any part of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Estate.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice, or other document it may receive or which may be alleged to have been delivered to or served upon it by third parties as a consequence of the assignment of any of the Home Equity Loans hereunder or may otherwise pertain to its interests in any of the Properties; provided, however, that the Trustee shall use commercially reasonable efforts to deliver to the Servicer any such complaint, claim, demand, notice, or other document which is delivered to the Corporate Trust Office of the Trustee and contains sufficient information to enable an Authorized Officer of the Trustee to identify it as pertaining to a Mortgage or a Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Centex Funding LLC Centex Home Eq Ln Ast Bk Cert Ser 2003-A), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2003-B)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 2 contracts
Sources: Indenture (Golub Capital Investment Corp), Indenture (Golub Capital BDC, Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Home Equity Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-3), Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-1)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(vIndenture shall be subject to the protections, exculpations and limitations on liability afforded to an indenture trustee under the provisions of the Trust Indenture Act. For the purposes of Sections 315(b)(2) in no event shall and 315(d)(2) of the Trust Indenture Act, the term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee be liable for special, indirect, punitive customarily performing functions similar to those performed by a Responsible Officer or consequential loss or damage (including lost profits) even if the Trustee has been advised any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 2 contracts
Sources: Indenture (Txu Capital Iv), Indenture (Txu Electric Capital Viii)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other smaller percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other smaller percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to notify the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 2 contracts
Sources: Indenture (TICC Capital Corp.), Indenture (TICC Capital Corp.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes The Rights Agents undertake to perform such duties and only such duties as are specifically set forth herein, and no implied covenants or obligations in this Agreement. The Rights Agents 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it them by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person man would exercise or use under the circumstances in the conduct of such Person’s his own affairs; PROVIDED, HOWEVER, that the Rights Agents shall not be liable for any acts or omissions except to the extent that the Rights Agents have engaged in willful misconduct or bad faith.
(cb) No provision hereof of this Agreement shall be construed to relieve the Trustee Rights Agents from liability for its own negligent action, its own negligent failure to act, or its their own willful misconductmisconduct or bad faith, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) that no provision of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof Agreement shall require the Trustee Rights Agents to expend or risk its their own funds or otherwise incur any financial or other liability in the performance of any of its their duties hereunder, hereunder or in the exercise of any of its their rights or powers contemplated hereunderpowers.
(c) The Rights Agents shall have the sole power and duty to direct and supervise all matters involving the Litigation (including trial strategy and planning and settlement strategy) on behalf of Parent, River, and the River Subsidiaries; PROVIDED that all decisions and determinations with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) shall be made in accordance with Section 5.1(b) hereof. Either one or both of the River Rights Agents (as they may mutually decide in their discretion) shall have primary responsibility for the day-to-day direction and supervision of the Litigation and may, without the approval of any of the Parent, River, the River Subsidiaries or any of the other Rights Agents, make decisions and determinations in accordance with Section 5.1(b) hereof with respect to the day-to-day conduct of the Litigation and such decisions shall be deemed to made on behalf of all of the Rights Agents. Notwithstanding the foregoing, (i) the approval of a majority of the Rights Agents (including the Independent Rights Agent) shall be required for any Strategic Decision and (ii) the approval of a majority of the Rights Agents (other than the Independent Rights Agent) shall be required for any Settlement Decision; PROVIDED, however, if it there is a vacancy with respect to any Rights Agent (other than the Independent Rights Agent), the approval of all Rights Agents (other than the Independent Rights Agent) shall have reasonable grounds be required for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionany Settlement Decision.
(d) For The Rights Agents shall confer in person or by telephone at least once per month, but in any event as frequently as necessary to keep all purposes under this Indenture, Rights Agents and the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working Independent Rights Agent informed about material developments in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact Litigation, on at least three days' prior notice. At least one such an Event of Default or Default is received conference per month shall include a briefing by the Trustee at River Rights Agents that describes the Corporate Trust Office, progress of the Litigation and such notice references summarizes any material decisions or determinations that were made without seeking the Securities generally, approval of the Issuer, Independent Rights Agent or either of the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Parent Rights Agents.
(e) Upon (1) shall preside at all meetings or conferences of Rights Agents, unless he is removed by majority vote of the Trustee receiving written notice from other Rights Agents then in office. In the Collateral Manager that an event constituting “Cause” has occurredhe or she is removed or is unwilling or unable to serve, his or her successor shall be elected by majority vote of the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear Rights Agents then in the Register or the Share Register, as applicable) and the Rating Agencyoffice.
(f) Whether The Rights Agents shall establish procedures for making decisions in an expedited manner in the case of exigent or not therein expressly so providedemergency circumstances arising in connection with the Litigation.
(g) The Rights Agents shall be deemed to be agents of the Holders, every provision of this Indenture Parent and River for all purposes relating to evidentiary privileges, including attorney-client privileges.
(h) Any Rights Agent that receives a notice provided by the conduct Holders or affecting the liability of Parent or affording protection any other Person pursuant to the Trustee this Agreement shall be subject provide such notice to the provisions of this Section 6.1all other Rights Agents.
Appears in 2 contracts
Sources: Contingent Value Rights Agreement (Information Resources Inc), Merger Agreement (Information Resources Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Loan Obligation Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Loan Obligation Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Loan Obligation Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f), 5.1(h) or (g5.1(i) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Sections 6.1(a), (b), (c), (d) and (e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Loan Obligation Manager or the Rating Agency, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
Appears in 2 contracts
Sources: Indenture (Arbor Realty Trust Inc), Indenture (Arbor Realty Trust Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersDebtholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section section (c) shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), ) or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Debt generally, the Issuer, the Co-Issuer, the Assets Issuer or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee Trust Officer receiving written notice from the Collateral Manager stating that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) five Business Days thereafter, forward such notice to the Holders Debtholders (as their names appear in the Register or the Share Notes Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall, upon reasonable (but no less than three Business Days’) prior written notice to the Trustee, permit any representative of a Holder of Debt, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee (other than items protected by attorney-client privilege or in violation of any confidentiality provisions contained therein) relating to the Debt, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such ▇▇▇▇▇▇) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Debt, with the Trust Officers and employees responsible for carrying out the Trustee’s duties with respect to the Debt.
Appears in 2 contracts
Sources: Indenture (HPS Corporate Lending Fund), Indenture (HPS Corporate Lending Fund)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement unless the Trustee resigns or is removed, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingMaster Servicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Master Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassMaster Servicer, the Master Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Master Servicer, and pending the appointment of any other percentage Person as successor Master Servicer, have the power and duty during its performance as successor Master Servicer:
(i) to collect payments on each Note;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsMortgage Loans; and
(vi) to make Servicing Advances.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officeran Authorized Officer of the Trustee, unless it shall be proven 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 any direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating given pursuant to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionSection 6.11.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken. The Trustee may not act under this subparagraph (g) without the prior written consent of the Certificate Insurer, unless a Certificate Insurer Default exists.
(h) Upon the direction of the Certificate Insurer, the Trustee hereby agrees to oppose any attempt to treat the Mortgage Loans as the property of the estate of either Seller, the Master Servicer or the Depositor.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Collateral Trustee:
(i) the Collateral Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, the Class A-1L-1 Loan Agreement and the Class A-1L-2 Loan Agreement, and no implied covenants or obligations shall be read into this Indenture Indenture, the Class A-1L-1 Loan Agreement or the Class A-1L-2 Loan Agreement against the Collateral Trustee; and
(ii) in the absence of bad faith on its part, the Collateral Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Collateral Trustee, the Collateral Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Collateral Trustee within 15 fifteen (15) days after such notice from the Collateral Trustee, the Collateral Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Collateral Trustee has occurred and is continuing, the Collateral Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof hereof, in the Class A-1L-1 Loan Agreement or in the Class A-1L-2 Loan Agreement shall be construed to relieve the Collateral Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Collateral Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Collateral Trustee was negligent in ascertaining the pertinent facts;
(iii) the Collateral 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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Collateral Trustee, or exercising any trust or power conferred upon the Collateral Trustee, under this Indenture;
(iv) no provision hereof hereof, in the Class A-1L-1 Loan Agreement or in the Class A-1L-2 Loan Agreement shall require the Collateral Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Collateral Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Collateral Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Collateral Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Collateral Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Collateral Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Collateral Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Collateral Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Collateral Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Indenture, in the Class A-1L-1 Loan Agreement or in the Class A-1L-2 Loan Agreement relating to the conduct or affecting the liability of or affording protection to the Collateral Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture and Security Agreement (Blue Owl Credit Income Corp.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee (or the Bank of any Affiliate thereof acting in any capacity) be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice (which notice may be delivered via email in the form of a signed .pdf) of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Home Equity Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;Section; 106
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers Certificate Insurer or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Co- Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indentureit; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon Not later than one Business Day after the Trustee receiving written receives (i) notice of assignment pursuant to Section 13(d) of the Collateral Management Agreement, (ii) a Termination Notice (as defined in the Collateral Management Agreement) or a Statement of Cause (as defined in the Collateral Management Agreement) pursuant to Section 14(a) of the Collateral Management Agreement or (iii) a notice from the Collateral Manager that an event constituting “Cause” has occurredpursuant to Section 14(b) of the Collateral Management Agreement, the Trustee shall, not later than two (2) Business Days thereafter, shall forward a copy of such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingMaster Servicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Master Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassMaster Servicer, the Master Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Master Servicer, and pending the appointment of any other percentage Person as successor Master Servicer, have the power and duty during its performance as successor Master Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) To enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make P&I Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officeran Authorized Officer of the Trustee, unless it shall be proven 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 any direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating given pursuant to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionSection 6.11.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) Upon the direction of the Certificate Insurer, the Trustee hereby agrees to oppose any attempt to treat the Mortgage Loans as the property of the estate of Companion Mortgage Corporation, the Master Servicer or the Depositor.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Block Mortgage Finance Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 misconductmisconduct or bad faith, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e), (f), 5.1(g) or (g5.1(h) or any Default described in Section 5.1(e) unless a Trust Officer of the Trustee assigned to and working in the Corporate Trust Office of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust OfficeOffice of the Trustee, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of Section 6.1(a), 6.1(b), 6.1(c), 6.1(d) and 6.1(e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Collateral Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
(h) Within 10 days after the Closing Date in respect of the Initial Certification, and within 90 days after the Closing Date in respect of the Final Certification, the Trustee shall examine the Collateral File (as such term is defined in the Collateral Obligations Purchase Agreements) in its possession, and shall deliver to the Issuer and the Collateral Manager a certification (the “Initial Certification” and the “Final Certification”, respectively, in the respective forms set forth as Exhibit L and Exhibit M hereto), which may be in electronic format (i) in the case of the Initial Certification, as to each Collateral Obligation listed on Schedule E, except as may be specified in the schedule of exceptions to Collateral File delivery attached thereto, to the effect that each promissory note, subordinate note or mezzanine note has been endorsed or an allonge has been attached thereto as provided in the definition of Collateral File (or, in the case of a Noteless Loan, a copy of the Loan Register, certified by an Officer of the party responsible for maintaining such Loan Register pursuant to the Underlying Instruments, has been provided), and (ii) in the case of the Final Certification, as to each Collateral Obligation listed on Schedule E, except as may be specified in the schedule of exceptions to Collateral File delivery attached thereto, to the effect that: (A) all documents pursuant to the definition of Collateral File required to be included in the Collateral File (to the extent required to be delivered pursuant to this Section 6.1Agreement), and with respect to all documents specified in the other clauses of the definition of Collateral File to the extent actually known by a responsible officer of the Trustee to be required pursuant to this Agreement, are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Collateral Obligation and (C) each promissory note, subordinate note or mezzanine note has been endorsed or an allonge has been attached thereto as provided in the definition of Collateral File (or, in the case of a Noteless Loan, a copy of the Loan Register, certified by an Officer of the Seller, has been provided). The Trustee shall have no obligation to determine the accuracy or veracity of any document in the Collateral File.
Appears in 1 contract
Sources: Indenture (Capitalsource Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(A) on the immediately succeeding Payment Date net of the amounts specified in Section 6.7(a), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive indirect or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (Golub Capital BDC, Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer, the Servicer and, thereafter, the Master Servicer, the Trustee or any other successor servicer shall perform such other percentage duties. Specifically, and not in limitation of the foregoing, the Trustee if it shall become the successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Home Equity Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers Certificate Insurer or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Contimortgage Home Equity Trust 1999-1)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicers hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicers it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicers, the Servicers and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicers, and pending the appointment of any other percentage Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care to pay Compensating Interest (and skill in its exercise, to be reimbursed therefor as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsprovided herein).
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest 109 of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicers under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicers in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1997-2)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such the duties and only such the duties as are specifically set forth hereinprovided 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 of the statements and the correctness of the opinions opinions, including any Opinion of Counsel, expressed therein, upon on certificates or opinions opinions, including any Opinion of Counsel, furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of Trustee shall examine any such certificates or opinions which that by any provision hereof of this Indenture 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 substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, promptly notify the party delivering the same if such the certificate or opinion does not conform. If a corrected form shall has not have been delivered to the Trustee within 15 days after such the notice from the Trustee, the Trustee shall so notify the HoldersHolders of the Notes.
(b) In case If the Trustee has actual knowledge that an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Supermajority (or such other percentage as required by this Indenture) of the Controlling Class or other Class if required or permitted by this Indenture), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be is proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Co-Issuer or the Collateral Manager in accordance with this Indenture and/or or a Majority Supermajority (or such other percentage as may be required by this Indenture) of the terms hereof) Aggregate Principal Amount of the Controlling Class (or other Class if required or permitted by the terms hereof), this Indenture) relating to the time, method method, and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon on the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunderunder this Indenture, or in the exercise of any of its rights or powers contemplated hereunderunder this Indenture, if it shall have has reasonable grounds for believing that repayment of such the funds or adequate indemnity satisfactory to it against such the risk or liability is not reasonably assured to it unless such risk or liability relates to the incidental costs related to its performance of its ordinary services, including mailing of notices services under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections Section 5.1(c), (d), (e), (f), or (g) through 5.1(g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof of it or unless written notice of any event which that is in fact such the an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such the notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunderunder this Indenture, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such the reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have has notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1 and Section 6.3.
(f) In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee or Collateral Administrator, to agree to the procedures performed by such firm or execute any agreement in order to access its report, which may contain, among other things, (i) acknowledgements of the sufficiency of the agreed upon procedures agreed to in connection with the engagement of the Independent accountants by the Issuer, (ii) releases of claims and other limitations of liability in favor of the Independent accountants, or (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders), the Issuer hereby directs the Bank to so agree or execute any such agreement; it being understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Trustee or the Bank shall make no inquiry or investigation as to, and shall have no obligation in respect of, the sufficiency, validity or correctness of such procedures. Notwithstanding the foregoing, in no event shall the Bank be required to execute any agreement in respect of the Independent accountants that the Bank determines adversely affects it in its individual capacity.
(g) Promptly (and in no event later than three Business Days) upon the Trustee receiving any written notice expressly required to be provided to the Trustee by the Collateral Manager under the Management Agreement, the Trustee shall notify the Noteholders and the Rating Agencies.
Appears in 1 contract
Sources: Indenture (NewStar Financial, Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage in the case of a Sale pursuant to Section 5.5(a)(ii), from either (A) if the Class A Notes have not yet been paid in full, at least 66 2/3% (in aggregate principal amount) of the Class A Notes or (B) if the Class A Notes have been paid in full, at least a majority in principal amount of the remaining Notes then Outstanding (acting as permitted by this Indenturea collective whole), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent factsfacts (provided, that the foregoing shall not be construed to contravene any express provision hereof permitting the Trustee to rely on information provided by other Persons);
(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 Issuers Issuer or the Collateral Manager Co-Issuer in accordance with this Indenture and/or or the Holders of a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), ) relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i) hereof, the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this Indenture; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss omitted by it at the direction of either or damage (including lost profits) even if the Trustee has been advised both of the likelihood Co-Issuers, the Collateral Manager and/or the Holders of the Notes of the Controlling Class (or other Class if required or permitted by the terms hereof) under circumstances in which such damages and regardless direction is required or permitted by the terms of such actionthis Indenture.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d), (e), (f), 5.1(g) or (g5.1(h) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(f) The Trustee is hereby directed to execute and deliver the CDO Servicing Agreement.
Appears in 1 contract
Sources: Indenture (CBRE Realty Finance Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (ii)(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions or any other resolutions, statements, reports, documents, orders or other instruments 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 substantially conform to the requirements hereof and of this Agreement; provided, however, that the Trustee shall promptlynot be responsible for the accuracy or content of any resolution, but in any event within three (3) Business Days in the case of an Officer’s certificate certificate, statement, opinion, report, document, order or other instrument furnished by the Collateral ManagerServicer, notify the party delivering Seller, the same if such certificate Certificate Insurer or opinion does not conformthe Depositor hereunder. If a corrected form shall any such instrument is found not have been delivered to conform in any material respect to the Trustee within 15 days after such notice from the Trusteerequirements of this Agreement, the Trustee shall so notify the Holders.
(b) In case an Owners of the Certificates of such instrument in the event that the Trustee, after so requesting, does not receive a satisfactorily corrected instrument. Notwithstanding the foregoing, if a Servicer Termination Event of Default known to which a responsible officer of the Trustee shall have actual knowledge has occurred and is continuinghas not been cured or waived, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, shall exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee (unless the Servicer shall have resigned or been terminated and a successor Servicer shall not have been appointed pursuant to the terms of this Agreement), and that all parties hereto agree that, prior to any termination of the Servicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14; 106
(v) to enforce the Home Equity Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Certificate Insurer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default unless an Authorized Officer of the Trustee shall have received written notice thereof or Event an Authorized Officer shall have actual knowledge thereof. In the absence of Default described in Sections 5.1(c)receipt of such notice, the Trustee may conclusively assume that there is no default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section 10.01, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance or (C) to see to the payment or discharge of any tax, (e), (f)assessment, or (g) unless a other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Officer assigned to and working Estate from funds available in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Certificate Account.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1998-3)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generallyreferences, the Issuer, the Co-Issuer, the Assets or Notes and this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Sections 6.1(a), (b), (c), (d) and (e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Collateral Manager or the Rating Agency, during the Trustee’s normal business hours, to review all books of account, records, reports and other papers of the Trustee relating to the Notes, and to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee).
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except The Trustee (i) except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee Default, undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in of this Agreement. During the case continuance of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the TrusteeEvent of Default, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its exercise, their exercise as a prudent Person person would exercise or use under the circumstances with respect to such person's property or affairs.
(b) Notwithstanding the retention of the Master Servicer pursuant hereto and subject to the provisions of Section 11.1 hereof, the Trustee is hereby empowered (but not obligated) to perform the duties of the Master Servicer hereunder following the failure of the Master Servicer to perform pursuant hereto. 100 Specifically, and not in limitation of the foregoing, the Trustee shall have the power (but not the obligation):
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Article X hereof;
(iv) to deliver instruments of satisfaction pursuant to Article X hereof;
(v) to enforce the Mortgage Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, in the conduct of such Person’s own affairsmanner required by this Agreement.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section clause (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuers Seller or the Collateral Manager in accordance Certificate Insurer or, with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Certificate Insurer's consent, of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default by the Seller or Event by the Master Servicer unless the Trustee shall have received written notice thereof. In the absence of Default described in Sections 5.1(c)actual receipt of such notice, the Trustee may conclusively assume that there is no such default; and
(v) Subject to the other provisions of this Agreement and without limiting the generality of this Section, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement, any Mortgage or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance, (e)C) to see the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any property of the Trust, (f), D) to confirm or (g) unless a Trust Officer assigned to and working in verify the Corporate Trust Office has actual knowledge thereof or unless written notice contents of any event which is in fact such an Event reports or certificates of Default the Master Servicer or Default is received any Sub-Servicer delivered to the Trustee pursuant to this Agreement or any Sub-Servicing Agreement believed by the Trustee at the Corporate Trust Office, to be genuine and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1been signed or presented by the proper party or parties.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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 and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer hereunder except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties and powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its reasonable satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Access Financial Lending Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes The Rights Agents undertake to perform such duties and only such duties as are specifically set forth herein, and no implied covenants or obligations in this Agreement. The Rights Agents 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it them by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person man would exercise or use under the circumstances in the conduct of such Person’s his own affairs; provided, however, that the Rights Agents shall not be liable for any acts or omissions except to the extent that the Rights Agents have engaged in willful misconduct or bad faith.
(cb) No provision hereof of this Agreement shall be construed to relieve the Trustee Rights Agents from liability for its own negligent action, its own negligent failure to act, or its their own willful misconductmisconduct or bad faith, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) that no provision of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof Agreement shall require the Trustee Rights Agents to expend or risk its their own funds or otherwise incur any financial or other liability in the performance of any of its their duties hereunder, hereunder or in the exercise of any of its their rights or powers contemplated hereunderpowers.
(c) The Rights Agents shall have the sole power and duty to direct and supervise all matters involving the Litigation (including trial strategy and planning and settlement strategy) on behalf of Parent, the Company, the Company Subsidiaries and their Affiliates; provided that all decisions and determinations with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) shall be made in accordance with Section 3.1(d) hereof. Either one or both of the CVR Rights Agents (as they may mutually decide in their discretion) shall have primary responsibility for the day-to-day direction and supervision of the Litigation and may, without the approval of any of Parent, the Company, the Company Subsidiaries or any of the other Rights Agents, make decisions and determinations in accordance with Section 3.1(d) hereof with respect to the day-to-day conduct of the Litigation and such decisions shall be deemed to made on behalf of all of the Rights Agents. Notwithstanding the foregoing, (i) the approval of a majority of the Rights Agents (including the Independent Rights Agent) shall be required for any Strategic Decision and (ii) the approval of a majority of the Rights Agents (other than the Independent Rights Agent) shall be required for any Settlement Decision; provided, however, if it there is a vacancy with respect to any Rights Agent (other than the Independent Rights Agent), the approval of all Rights Agents (other than the Independent Rights Agent) shall have reasonable grounds be required for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionany Settlement Decision.
(d) For all purposes under this IndentureIn making any decision or determination with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) the Rights Agents shall act in good faith with a view to maximizing the present value of the Litigation Proceeds to the Company, the Trustee Company Subsidiaries and the CVR Trust. Without limiting the generality of the foregoing, in connection with any Settlement Decision, the Rights Agents shall not consider: 15
(A) the aggregate amount of After-Tax Litigation Proceeds to be deemed received in connection with the proposed settlement;
(B) the benefit to have notice or knowledge the Company and the Company Subsidiaries of any Default agreements, commitments or Event undertakings to be made in connection with such settlement that restrict future anti-competitive or allegedly anti-competitive conduct by one or more parties to the Litigation;
(C) if consent to such settlement is withheld, the probability of Default described the Company and the Company Subsidiaries receiving greater After-Tax Litigation Proceeds in Sections 5.1(c), connection with a subsequent settlement or other resolution of the Litigation;
(d), (e), (f), D) the probable timing of such subsequent settlement or (g) unless a Trust Officer assigned to other resolution of the Litigation and working in the Corporate Trust Office has actual knowledge thereof or unless written notice probable amount of any event which is additional After-Tax Litigation Proceeds to be received in fact connection therewith; and
(E) the discounted present value of such an Event prospective additional After-Tax Litigation Proceeds. The discount rate applicable to the value of Default or Default is received such prospective additional After-Tax Litigation Proceeds shall be determined by the Trustee at applicable majority of the Corporate Trust Office, Rights Agents as determined in accordance with the last sentence of Section 3.1(c) and such notice references shall give due regard to the Securities generallyfinancial and other costs to the Company, the Issuer, Company Subsidiaries and the Co-Issuer, CVR Trust of postponing settlement or other resolution of the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Litigation.
(e) Upon In connection with the Trustee receiving written notice approval of any Settlement Decision, the applicable majority of the Rights Agents for Settlement Decisions as determined in accordance with the last sentence of Section 3.1(c) shall determine the amount, or a methodology for determining the amount, of any Litigation Proceeds resulting from the Collateral Manager that settlement and the fair market value (determined on an event constituting “Cause” has occurredarm’s-length basis and without regard to any liens or encumbrances granted or created by Parent, the Trustee shallCompany, not the Company Subsidiaries, or their Affiliates and with Compliance Commitments having a fair market value of zero) of any Non-Cash Proceeds. As promptly as practicable (but in no event later than two (230 days after the settlement), the Rights Agents shall deliver to Parent a Litigation Proceeds Certificate setting forth the matters described in Section 2.2(a) Business Days thereafterand, forward absent mathematical error, the amounts set forth in such notice Litigation Proceeds Certificate shall be binding on Parent and the CVR Trust. Upon receipt of any Litigation Proceeds resulting from the settlement, Parent shall compute the CVR Payment Amount in a manner consistent with the Litigation Proceeds Certificate and shall pay the CVR Payment Amount to the Holders CVR Trust in accordance with Section 2.3(a) (as their names appear in accompanied by the Register or Officer Certificate’s setting forth the Share Register, as applicable) and the Rating AgencyCVR Payment Amount).
(f) Whether The Rights Agents shall confer in person or not therein expressly so providedby telephone at least once per month, every provision but in any event as frequently as necessary to keep all Rights Agents and the Independent Rights Agent informed about material developments in the Litigation, on at least three days’ prior notice. At least one such conference per month shall include a briefing by the CVR Rights Agents that describes the progress of the Litigation and summarizes any material decisions or 16 determinations that were made without seeking the approval of the Independent Rights Agent or either of Parent Rights Agents.
(g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall preside at all meetings or conferences of Rights Agents, unless he is removed from this Indenture capacity by majority vote of the other Rights Agents then in office. In the event he or she is removed or is unwilling or unable to preside at all meetings or conferences, his or her successor shall be elected by majority vote of the Rights Agents then in office.
(h) The Rights Agents shall establish procedures for making decisions in an expedited manner in the case of exigent or emergency circumstances arising in connection with the Litigation.
(i) The Rights Agents shall be deemed to be agents of Parent and the Company for all purposes relating to the conduct or affecting the liability of or affording protection evidentiary privileges, including attorney-client privileges.
(j) Any Rights Agent that receives a notice provided pursuant to the Trustee this Agreement shall be subject provide such notice to the provisions of this Section 6.1all other Rights Agents.
Appears in 1 contract
Sources: Contingent Value Rights Agreement (Information Resources Litig Contingent Pymt Rights Trust)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates certificates, advice or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates certificates, advice 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 substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral Portfolio Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of written directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Co-Issuer or the Portfolio Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected (as determined by the Trustee) not to exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(A) on the immediately succeeding Payment Date net of the amounts specified in Section 6.7(a), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this IndentureIndenture (and it is hereby expressly acknowledged and agreed for the purposes of this sub-clause only, without implied limitation, that the enforcement or exercise of rights and remedies under Article 5 and/or the commencement of or participation in any legal proceeding does not constitute "ordinary services"); and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of the form of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections Section 5.1(c), (d), (e), or (f), ) or (g) any other matter unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default or other matter, as the case may be, is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Portfolio Manager that an event constituting “"Cause” " as defined in the Portfolio Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders Noteholders (as their names appear in the Register Note Register). In addition, the Trustee shall deliver all notices to the Noteholders forwarded to the Trustee by the Issuer, the Collateral Administrator or the Share Register, as applicable) and Portfolio Manager for the Rating Agencypurpose of delivery to the Noteholders.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (JMP Group Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two (2) Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f), 5.1(h) or (g5.1(i) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1(a), 6.1(b), 6.1(c), 6.1(d) and 6.1(e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Collateral Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
Appears in 1 contract
Sources: Indenture (Gramercy Capital Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating AgencyAgencies.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture and in any other Trustee Document, and no implied covenants or obligations shall be read into this Indenture or any other Trustee Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture or any other Trustee Document; provided that in the case of any such certificates or opinions which by any provision hereof or of any other Trustee Document 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 substantially conform to the requirements hereof of this Indenture or such other Trustee Document and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral ManagerIssuer and/or the Co-Issuer, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority 25% of the Controlling Class, Class in the case of an Event of Default specified in Sections 5.1(a) or such 5.1(b) of the Common Agreement and 33% of the Controlling Class in all other percentage as permitted by this Indenturecases, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof of this Indenture or of any other Trustee Document 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Co-Issuer or the Collateral Program Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the TrusteeIndenture, or exercising any trust or power conferred upon the Trustee, under this IndentureIndenture or any other Financing Document;
(iv) no provision hereof of this Indenture or any other Trustee Document shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunderhereunder or thereunder, or in the exercise of any of its rights or powers contemplated hereunderhereunder or thereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Article 4 of the Security Agreement, the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this IndentureIndenture or any other Trustee Document; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuers, the Program Manager and/or the Controlling Class under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture or any other Trustee Document.
(d) For all purposes under this IndentureIndenture and each other Trustee Document, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unrelated to payment on the Notes unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or a Default is received by the Trustee at the Corporate Trust Office, Office and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Issuers or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture or any other Trustee Document to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or a Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture or any other Trustee Document relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Collateral Trustee:
(i) the Collateral Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinherein and the Class A-1L Credit Agreement, and no implied covenants or obligations shall be read into this Indenture or the Class A-1L Credit Agreement against the Collateral Trustee; and
(ii) in the absence of bad faith on its part, the Collateral Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Collateral Trustee, the Collateral Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Collateral Trustee within 15 days after such notice from the Collateral Trustee, the Collateral Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Collateral Trustee has occurred and is continuing, the Collateral Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof or in the Class A-1L Credit Agreement shall be construed to relieve the Collateral Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Collateral Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Collateral Trustee was negligent in ascertaining the pertinent facts;
(iii) the Collateral 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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Collateral Trustee, or exercising any trust or power conferred upon the Collateral Trustee, under this Indenture;
(iv) no provision hereof or in the Class A-1L Credit Agreement shall require the Collateral Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Collateral Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Collateral Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Collateral Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Collateral Trustee at the Corporate Trust Office, and such notice references the Securities Debt generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Collateral Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Collateral Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Collateral Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Collateral Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register, the Loan Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture or in the Class A-1L Credit Agreement relating to the conduct or affecting the liability of or affording protection to the Collateral Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture and Security Agreement (Blue Owl Credit Income Corp.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicers hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicers it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicers, the Servicers and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicers, and pending the appointment of any other percentage Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care to pay Compensating Interest (and skill in its exercise, to be reimbursed therefor as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsprovided herein).
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting 130 any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicers under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicers in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) None of the Servicers, the Master Servicer, the Seller and the Trustee knowingly shall take any action (other than any action expressly required by this Agreement) that would cause the Class A-7 Certificates, the Class A-8 Certificates or the Class M-1A Certificates to fail to qualify as "mortgage related securities" within the meaning of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1998-2)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shallshall on behalf of the Holders of the Notes, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenturefrom the Holders of not less than 25% of the Aggregate Outstanding Amount of the Controlling Class pursuant to Section 5.4(b), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Bank Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Co-Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(A) on the immediately succeeding Distribution Date net of the amounts specified in Section 6.7(a), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article V, under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of the form of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Bank Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Obligations generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” "cause" as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to the Holders (of the Notes, as their names and addresses appear in on the Register or the Share Register, as applicable) and the Rating AgencyIrish Stock Exchange, for so long as any Class of Notes is listed on the Irish Stock Exchange and so long as the guidelines of such exchange so require.
(f) Upon written request, the Trustee and the Registrar at the expense of the Issuer shall promptly provide to the Issuer, the Collateral Manager, the Placement Agent or any agent thereof any information specified by such parties regarding the identity of Holders of the Obligations and payments on the Obligations that is reasonably available to the Trustee or the Registrar in their capacity as such, as the case may be, as may be necessary or helpful for the Issuer to achieve FATCA Compliance, which shall be used and disclosed solely in furtherance of the Issuer's FATCA Compliance. All information provided shall be true and correct to the best of the Trustee's and the Registrar's knowledge, it being understood that the Trustee and the Registrar shall have no liability for any such disclosure or the accuracy thereof.
(g) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (Fifth Street Senior Floating Rate Corp.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Master Servicer hereunder, the Trustee has occurred is hereby empowered to perform the duties of the Master Servicer, it being expressly understood, however, that the foregoing describes a power and is continuingnot an obligation of the Trustee, and that all parties hereto agree that, prior to any termination of the Master Servicer, the Master Servicer and, thereafter, the Trustee or any other successor Master Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall, prior to the receipt of directions, if any, from a Majority upon termination or resignation of the Controlling ClassMaster Servicer and pending the appointment of any other Person as successor Master Servicer, or such other percentage have the power and duty during its performance as successor Master Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:: 109
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officeran Authorized Officer of the Trustee, unless it shall be proven 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 any direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating given pursuant to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionSection 6.11.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) Upon the direction of the Certificate Insurer, the Trustee hereby agrees to oppose any attempt to treat the Mortgage Loans as the property of the estate of Companion Mortgage Corporation, the Master Servicer or the Depositor. 110
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1998-1)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Co-Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; andit;
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action; and
(vi) in no event shall the Trustee have any obligation to determine or verify whether the U.S. Risk Retention Rules or the risk retention regulations of any other jurisdiction have been satisfied.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon Not later than one Business Day after the Trustee receiving written receives (i) notice from of assignment pursuant to Section 13 of the Collateral Manager that an Management Agreement, (ii) notice of termination pursuant to Section 12 of the Collateral Management Agreement or (iii) notice of a “cause” event constituting “Cause” has occurred(pursuant to Section 14 of the Collateral Management Agreement) of the Collateral Management Agreement, the Trustee shall, not later than two (2) Business Days thereafter, shall forward a copy of such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall have no obligation or liability to determine or verify if the conditions for acceptance of a Contribution or the application thereof to any Permitted Use have been satisfied.
(h) The Trustee agrees to provide to the Issuer and the Collateral Manager all information reasonably available to it relating to the Assets or the transactions contemplated by this Indenture (other than information the Trustee has reasonably determined is confidential or proprietary) that is reasonably requested by the Issuer or the Collateral Manager in connection with regulatory matters, including any information that is necessary or advisable in order for the Collateral Manager (or its parent or Affiliates) to complete its Form ADV, to file its reports on Form PF or to comply with any requirements of the ▇▇▇▇–▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act, as amended from time to time, and any other laws or regulations applicable to the Collateral Manager from time to time.
(i) The Trustee is hereby authorized and directed to execute and deliver the Risk Retention Letter.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingMaster Servicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Master Servicer, it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassMaster Servicer, the Master Servicer and, thereafter, the Trustee or any other successor Master Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Master Servicer, and pending the appointment of any other percentage Person as successor Master Servicer, have the power and duty during its performance as successor Master Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) To enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officeran Authorized Officer of the Trustee, unless it shall be proven 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 any direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating given pursuant to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionSection 6.11.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) Upon the direction of the Certificate Insurer, the Trustee hereby agrees to oppose any attempt to treat the Mortgage Loans as the property of the estate of Companion Mortgage Corporation, the Master Servicer or the Depositor.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1997-2)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default actually known to a Trust Officer of the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture or the Transaction Documents against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, promptly notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default actually known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling ClassNoteholders or the Liquidation Agent, or such other percentage as permitted by this Indentureapplicable, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (FS Energy & Power Fund)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersother Secured Parties and the Noteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e), (f), 5.1(g) or (g5.1(h) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Sections 6.1(a), 6.1(b), 6.1(c), 6.1(d) and 6.1(e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Collateral Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
Appears in 1 contract
Sources: Indenture (CBRE Realty Finance Inc)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(v) in no event Indenture shall be subject to the protections, exculpations and limitations on liability afforded to the Trustee be liable for specialunder the provisions of the Trust Indenture Act. For the purposes of Sections 315(b)(2) and 315(d)(2) of the Trust Indenture Act, indirectthe term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice chairman of the board of directors, punitive the chairman or consequential loss vice chairman of the executive committee of the board of directors, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or damage (including lost profits) even if assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee has been advised customarily performing functions similar to those performed by a Responsible Officer or any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 1 contract
Sources: Indenture (For Unsecured Debt Securities) (Laclede Gas Co)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersHolders of Debt.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have actual or constructive knowledge or notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Debt generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders Noteholders (as their names appear in the Register Register). In no event shall the Trustee be deemed to have notice or knowledge of or otherwise be required to determine whether any event or circumstance exists that would give rise to “Cause” (as defined under the Share Register, as applicableCollateral Management Agreement) and for the Rating Agencytermination of the Collateral Manager.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Tax Event unless it receives written notice of the occurrence of a Tax Event from the Collateral Manager.
(h) The Trustee shall not have any obligation to confirm the compliance by the Issuer, the Retention Holder or any other Person with the EU/UK Retention Requirements and the U.S. Risk Retention Rules. The Trustee is hereby authorized and directed to provide its acknowledgement to the Retention of Net Economic Interest Letter.
(i) The Trustee shall have no obligation, liability or responsibility for the selection or verification of any Fallback Rate (including, without limitation, whether the conditions for the designation of such Fallback Rate have been satisfied).
(j) The Trustee shall have no liability or responsibility for monitoring or verifying compliance with FATCA for the Issuer, any Holder or any other Person.
(k) The Trustee’s services hereunder shall be conducted through its CCT services division (including, as applicable, any agents or affiliates utilized thereby).
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee The Class A-1A VFN Agent undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; andClass A-1A VFN Agent.
(iib) Upon certificates and other notices furnished to the Class A-1A VFN Agent and conforming to the requirements of this Agreement, the Class A-1A VFN Agent may, in the absence of gross negligence, willful misconduct or bad faith on its part, the Trustee may conclusively rely, rely as to the truth of the statements and the correctness of the opinions expressed therein. Neither the Class A-1A VFN Agent nor any of its affiliates, upon certificates directors, officers, agents or opinions furnished employees shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Holders representing a majority of the Class A-1A VFN Commitments (and to the Trustee and conforming to extent required under the requirements hereof; provided that Transaction Documents, the Issuer or Servicer on behalf of the Issuer) or (ii) in the case absence of its own gross negligence or willful misconduct. Neither the Class A-1A VFN Agent nor any of its affiliates, directors, officers, agents or employees shall be responsible or have any duty to ascertain, inquire or verify: (i) any statement, warranty or representation made in connection with this Agreement, any of the other Transaction Documents or any Draw hereunder, (ii) the performance or observation of any such certificates of the covenants or opinions agreements of the Issuer or the Servicer or (iii) the validity, effectiveness or genuineness of this Agreement, the Indenture or any instrument or writing furnished in connection herewith. The Class A-1A VFN Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, fax, electronic messaging or similar writing) reasonably believed by any provision hereof are specifically required it to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether genuine or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished signed by the Collateral Manager, notify the proper party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsparties.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee Class A-1A VFN Agent from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section clauses (a) of this Section 6.1and (b) above;
(ii) the Trustee Class A-1A VFN Agent shall not be liable for any error of judgment made in good faith by a Trust Officeran officer, unless it shall be proven that the Trustee Class A-1A VFN Agent was grossly 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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Agreement shall require the Trustee Class A-1A VFN Agent to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it it, unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionAgreement.
(d) For all purposes under this IndentureAgreement, the Trustee Class A-1A VFN Agent shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in an officer of the Corporate Trust Office Class
A- 1A VFN Agent has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Class A-1A VFN Agent.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee Class A-1A VFN Agent shall be subject to the provisions of this Section 6.15.02. Each Holder shall, ratably, in accordance with its Class A-1A VFN Commitment (or, if the Class A-1A VFN Commitments have been terminated or permanently reduced to zero, the unpaid principal amount of its Advances) indemnify each Indemnified Person for all Losses not reimbursed by the Issuer pursuant to Section 5.03(a)(iii); provided that no Holder shall have such indemnity or reimbursement obligation to the extent that such loss, liability or expense incurred by the applicable Indemnified Person arises out of, or in connection with any act or omission of any Indemnified Person constituting (x) negligence, willful misconduct or bad faith or (y) a breach of this Agreement.
Appears in 1 contract
Sources: Class a 1a VFN Purchase Agreement (Ares Capital Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Following the removal of Default known the Oversight Agent hereunder, in the event that either (i) prior to such removal, the servicing of the Mortgage Loans had previously been transferred to the Trustee has occurred Oversight Agent or (ii) the Servicer is removed hereunder, and is continuingpending the appointment of any other Person as successor Servicer, the Trustee (for this purpose, the term includes an affiliate thereof) shall and is hereby empowered to perform the duties of the Servicer hereunder and shall, prior to the receipt of directionsfor such period, if any, from a Majority have all of the Controlling Classrights of the Servicer. Specifically, and not in limitation of the foregoing, the Trustee shall upon removal of the Oversight Agent, and pending the appointment of any other Person as successor Oversight Agent or such other percentage Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgage payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this IndentureSection 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof;
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, exercise such of and
(vi) to enforce the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsMortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Certificate Insurer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof The Trustee shall require the Trustee not be required to expend or risk its own funds or otherwise incur any financial or other liability in for the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such risk or liability relates time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement;
(v) Subject to the performance other provisions of its ordinary servicesthis Agreement and without limiting the generality of this Section 10.1, including mailing the Trustee shall have no duty (A) to see any recording, filing, or depositing of notices under this IndentureAgreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate from funds available in the Certificate Account, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(vi) The Trustee shall not be accountable for the use or application of any funds paid to the Seller or the Servicer in respect of the Mortgage Loans or withdrawn from the Principal and Interest Account or the Certificate Account by the Seller or the Servicer; and
(vvii) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default or Event any of Default the events described in Sections 5.1(c), (d), (e), (f), or (g) Section 8.20 unless a Trust Responsible Officer assigned to and working in of the Corporate Trust Office Trustee shall have received written notice thereof or a Responsible Officer has actual knowledge thereof or unless written notice thereof. In the absence of any event which is in fact receipt of such an Event of Default or Default is received by notice, the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets may conclusively assume that no default or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as event described in this Section 6.18.20 has occurred.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays, counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-1)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersDebtholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section section (c) shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, incidental, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), ) or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Debt generally, the Issuer, the Co-Issuer, the Assets Issuer or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee Trust Officer receiving written notice from the Collateral Manager stating that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) five Business Days thereafter, forward such notice to the Holders Debtholders (as their names appear in the Register or the Share Notes Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall, upon reasonable (but no less than three Business Days’) prior written notice to the Trustee, permit any representative of a Holder of Debt, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee (other than items protected by attorney-client privilege or in violation of any confidentiality provisions contained therein) relating to the Debt, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Holder) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Debt, with the Trust Officers and employees responsible for carrying out the Trustee’s duties with respect to the Debt.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingMaster Servicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Master Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassMaster Servicer, the Master Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Master Servicer, and pending the appointment of any other percentage Person as successor Master Servicer, have the power and duty during its performance as successor Master Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) To enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make P&I Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust Officeran Authorized Officer of the Trustee, unless it shall be proven 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 any direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating given pursuant to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionSection 6.11.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Block Mortgage Finance Inc)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen (15) days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two (2) Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c5.1(d), (d5.1(f), (e5.1(g), (f), 5.1(h) or (g5.1(i) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (Gramercy Capital Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision in accordance with the terms hereof are specifically required to be furnished to and examined by the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral ManagerIssuer, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuinghas not been waived, the Trustee shall, prior to the receipt of directions, if any, from a the Majority of the Controlling Class, or such other percentage as permitted by this IndentureRepresentative, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Issuer as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in reliance upon such advice. The Trustee shall be entitled to conclusively rely upon, and shall not be liable for relying upon, any such instructions provided by the Issuer in accordance with this Section 6.1(c).
(d) No provision hereof 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 misconductmisconduct or bad faith, except that:
(i) this sub-Section clause (d) shall not be construed to limit the effect of sub-Section clause (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a the Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), Representative relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount of Administrative Expenses payable to the Trustee pursuant to Section 11.1(a) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Sponsor or any Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default except those described in Sections 5.1(c5.1(a), (d5.1(b), (e), (f), or (g5.1(d)(v) and 5.1(r) unless a Trust Officer assigned to and working in of the Corporate Trust Office Trustee has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust OfficeOffice of the Trustee, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1(a) through (e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Majority Representative, the Issuer, the Sponsor or the Rating Agency, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
(h) The Trustee is hereby ordered to execute and make all agreements contemplated by, solely in its capacity as the Trustee, that certain Letter Agreement, dated as of the Closing Date, by and among the Issuer, the Depositor, the Originator, the Sponsor, the Initial Guarantor and the Trustee.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicers hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicers it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicers, the Servicers and, thereafter, the Trustee or any other successor servicer shall perform such other percentage as permitted by this Indentureduties. Specifically, exercise such and not in limitation of the rights and powers vested in it by this Indentureforegoing, the Trustee shall upon termination or resignation of the Servicers, and use pending the same degree appointment of care any other Person as successor Servicer have the power and skill in duty during its exercise, performance as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 thatsuccessor Servicer:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1collect Mortgagor payments;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent factsto foreclose on defaulted Mortgage Loans;
(iii) the Trustee shall not be liable with respect to any action taken or omitted enforce due-on-sale clauses and to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage enter into assumption and substitution agreements as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms Section 8.12 hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance deliver instruments of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory satisfaction pursuant to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this IndentureSection 8.14; and
(v) in no event shall to enforce the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.Mortgage Loans; and
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1997-3)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Co-Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indentureit; and
(v) in no event shall the Trustee be liable for special, indirect, incidental, punitive or consequential loss or damage (including including, but not limited to, lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon Not later than one Business Day after the Trustee receiving written receives (i) notice of assignment pursuant to Section 13(d) of the Collateral Management Agreement, (ii) a Termination Notice (as defined in the Collateral Management Agreement) or a Statement of Cause (as defined in the Collateral Management Agreement) pursuant to Section 14(a) of the Collateral Management Agreement or (iii) a notice from the Collateral Manager that an event constituting “Cause” has occurredpursuant to Section 14(b) of the Collateral Management Agreement, the Trustee shall, not later than two (2) Business Days thereafter, shall forward a copy of such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall grant access, via a protected password to the Trustee’s Website in order to examine all books of account, records, reports and other papers of the Trustee (other than any items protected by attorney-client privilege) relating to the Notes, upon reasonable written request (but not less than three Business Days), to any Holder shown on the Register, and, upon written notice to the Trustee in the form of Exhibit C, any beneficial owner of a Note.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture or other Transaction Documents to which it is a party, and no implied covenants or obligations shall be read into this Indenture or such other Transaction Documents against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a the Majority of the Controlling ClassNoteholders, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section sub‑Section (c) shall not be construed to limit the effect of sub-Section sub‑Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Valuation Agent or the Collateral Manager in accordance with this Indenture and/or a the Majority Noteholders (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture or any other Transaction Document shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount available for payment to the Trustee pursuant to Section 6.7(a) on the immediately succeeding Payment Date, the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d5.1(d), (e5.1(e), (f5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(j), 5.1(k) or (g5.1(l) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “"Cause” " as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating AgencyNote Registers).
(f) Whether or not therein expressly so provided, every provision of this Indenture and each other Transaction Document to which the Trustee is a party relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall have no duty to (A) monitor or verify whether (i) any Holder (or beneficial owner) is a Section 13 Banking Entity or (ii) the Withdrawal Conditions are satisfied or (B) determine or verify (i) amounts owing under the Global Master Repurchase Agreement or (ii) whether any Portfolio Asset is a Zero Value Portfolio Asset.
Appears in 1 contract
Sources: Indenture (BC Partners Lending Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) the banking institution that is the Trustee shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer, the Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Home Equity Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsto pay Compensating Interest.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the 109 Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) Neither the Servicer, the Seller nor the Trustee knowingly shall take any action that would cause the Class A-10 Certificates or the Class M-1A Certificates to fail to qualify as "mortgage related securities" within the meaning of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-2)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default actually known to a Trust Officer of the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture and the other Transaction Documents to which it is a party, and no implied covenants or obligations shall be read into this Indenture or any Transaction Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; of this Indenture and the other Transaction Documents to which it is a party, provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, promptly notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 fifteen days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default actually known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this IndentureNoteholders, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 advice of counsel or an Opinion of Counsel, the direction of the Issuers Obligors or the Collateral Manager in accordance with this Indenture Servicer and/or a Majority (or such other larger or smaller percentage as may be expressly required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), Noteholders relating to its obligations as set forth herein and relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureIndenture or the other Transaction Documents;
(iv) no provision hereof of this Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunderhereunder or under any other Transaction Document, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (provided that an unsecured agreement to indemnify from an institutional investor with a net worth in excess of $100,000,000 (or such greater amount as the Trustee shall have determined is the amount at risk or of such liability) may be deemed satisfactory in the sole discretion of the Trustee for such purpose) unless such risk or liability relates to the performance of its ordinary services, including mailing delivery of notices under Article V under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including lost loss profits) even if the Trustee has been advised of the likelihood of such damages and regardless of the form of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c5.1(d), (d5.1(e), (e), (f), 5.1(g) or (g5.1(k) unless a Trust Officer of the Trustee assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by a Trust Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.1 and Section 6.3.
(f) The Trustee shall within a commercially reasonable time (and in any event within two Business Days) deliver to the Holders a copy of any notice it receives in connection with or pursuant to any of the Transaction Documents.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes The Rights Agents undertake to perform such duties and only such duties as are specifically set forth herein, and no implied covenants or obligations in this Agreement. The Rights Agents 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it them by this IndentureAgreement, and use the same degree of care and skill in its their exercise, as a prudent Person man would exercise or use under the circumstances in the conduct of such Person’s his own affairs; provided, however, that the Rights Agents shall not be liable for any acts or omissions except to the extent that the Rights Agents have engaged in willful misconduct or bad faith.
(cb) No provision hereof of this Agreement shall be construed to relieve the Trustee Rights Agents from liability for its own negligent action, its own negligent failure to act, or its their own willful misconductmisconduct or bad faith, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) that no provision of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof Agreement shall require the Trustee Rights Agents to expend or risk its their own funds or otherwise incur any financial or other liability in the performance of any of its their duties hereunder, hereunder or in the exercise of any of its their rights or powers contemplated hereunderpowers.
(c) The Rights Agents shall have the sole power and duty to direct and supervise all matters involving the Litigation (including trial strategy and planning and settlement strategy) on behalf of Parent, the Company, the Company Subsidiaries and their Affiliates; provided that all decisions and determinations with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) shall be made in accordance with Section 3.1(d) hereof. Either one or both of the CVR Rights Agents (as they may mutually decide in their discretion) shall have primary responsibility for the day-to-day direction and supervision of the Litigation and may, without the approval of any of Parent, the Company, the Company Subsidiaries or any of the other Rights Agents, make decisions and determinations in accordance with Section 3.1(d) hereof with respect to the day-to-day conduct of the Litigation and such decisions shall be deemed to made on behalf of all of the Rights Agents. Notwithstanding the foregoing, (i) the approval of a majority of the Rights Agents (including the Independent Rights Agent) shall be required for any Strategic Decision and (ii) the approval of a majority of the Rights Agents (other than the Independent Rights Agent) shall be required for any Settlement Decision; provided, however, if it there is a vacancy with respect to any Rights Agent (other than the Independent Rights Agent), the approval of all Rights Agents (other than the Independent Rights Agent) shall have reasonable grounds be required for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionany Settlement Decision.
(d) For all purposes under this IndentureIn making any decision or determination with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) the Rights Agents shall act in good faith with a view to maximizing the present value of the Litigation Proceeds to the Company, the Trustee Company Subsidiaries and the CVR Trust. Without limiting the generality of the foregoing, in connection with any Settlement Decision, the Rights Agents shall not consider:
(A) the aggregate amount of After-Tax Litigation Proceeds to be deemed received in connection with the proposed settlement;
(B) the benefit to have notice or knowledge the Company and the Company Subsidiaries of any Default agreements, commitments or Event undertakings to be made in connection with such settlement that restrict future anti-competitive or allegedly anti-competitive conduct by one or more parties to the Litigation;
(C) if consent to such settlement is withheld, the probability of Default described the Company and the Company Subsidiaries receiving greater After-Tax Litigation Proceeds in Sections 5.1(c), connection with a subsequent settlement or other resolution of the Litigation;
(d), (e), (f), D) the probable timing of such subsequent settlement or (g) unless a Trust Officer assigned to other resolution of the Litigation and working in the Corporate Trust Office has actual knowledge thereof or unless written notice probable amount of any event which is additional After-Tax Litigation Proceeds to be received in fact connection therewith; and
(E) the discounted present value of such an Event prospective additional After-Tax Litigation Proceeds. The discount rate applicable to the value of Default or Default is received such prospective additional After-Tax Litigation Proceeds shall be determined by the Trustee at applicable majority of the Corporate Trust Office, Rights Agents as determined in accordance with the last sentence of Section 3.1(c) and such notice references shall give due regard to the Securities generallyfinancial and other costs to the Company, the Issuer, Company Subsidiaries and the Co-Issuer, CVR Trust of postponing settlement or other resolution of the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1Litigation.
(e) Upon In connection with the Trustee receiving written notice approval of any Settlement Decision, the applicable majority of the Rights Agents for Settlement Decisions as determined in accordance with the last sentence of Section 3.1(c) shall determine the amount, or a methodology for determining the amount, of any Litigation Proceeds resulting from the Collateral Manager that settlement and the fair market value (determined on an event constituting “Cause” has occurredarm's-length basis and without regard to any liens or encumbrances granted or created by Parent, the Trustee shallCompany, not the Company Subsidiaries, or their Affiliates and with Compliance Commitments having a fair market value of zero) of any Non-Cash Proceeds. As promptly as practicable (but in no event later than two (230 days after the settlement), the Rights Agents shall deliver to Parent a Litigation Proceeds Certificate setting forth the matters described in Section 2.2(a) Business Days thereafterand, forward absent mathematical error, the amounts set forth in such notice Litigation Proceeds Certificate shall be binding on Parent and the CVR Trust. Upon receipt of any Litigation Proceeds resulting from the settlement, Parent shall compute the CVR Payment Amount in a manner consistent with the Litigation Proceeds Certificate and shall pay the CVR Payment Amount to the Holders CVR Trust in accordance with Section 2.3(a) (as their names appear in accompanied by the Register or Officer Certificate's setting forth the Share Register, as applicable) and the Rating AgencyCVR Payment Amount).
(f) Whether The Rights Agents shall confer in person or not therein expressly so providedby telephone at least once per month, every provision but in any event as frequently as necessary to keep all Rights Agents and the Independent Rights Agent informed about material developments in the Litigation, on at least three days' prior notice. At least one such conference per month shall include a briefing by the CVR Rights Agents that describes the progress of the Litigation and summarizes any material decisions or determinations that were made without seeking the approval of the Independent Rights Agent or either of Parent Rights Agents.
(g) 1 shall preside at all meetings or conferences of Rights Agents, unless he is removed from this Indenture capacity by majority vote of the other Rights Agents then in office. In the event he or she is removed or is unwilling or unable to preside at all meetings or conferences, his or her successor shall be elected by majority vote of the Rights Agents then in office. Insert name of a CVR Rights Agent.
(h) The Rights Agents shall establish procedures for making decisions in an expedited manner in the case of exigent or emergency circumstances arising in connection with the Litigation.
(i) The Rights Agents shall be deemed to be agents of Parent and the Company for all purposes relating to the conduct or affecting the liability of or affording protection evidentiary privileges, including attorney-client privileges.
(j) Any Rights Agent that receives a notice provided pursuant to the Trustee this Agreement shall be subject provide such notice to the provisions of this Section 6.1all other Rights Agents.
Appears in 1 contract
Sources: Contingent Value Rights Agreement (Information Resources Inc)
Certain Duties and Responsibilities. (a) Except The Rights Agent will not have any liability for any actions taken or not taken in connection with this Agreement, except to the extent such liability arises as a result of the fraud, willful misconduct, bad faith, or gross negligence of the Rights Agent (in each case as determined by a final non-appealable judgment of court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by ▇▇▇▇▇ to the Rights Agent in connection with this Agreement during the continuance of an Event of Default known to twelve (12) months preceding the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinevent for which recovery is sought by ▇▇▇▇▇, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that except 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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:
bad faith or fraud of the Rights Agent (i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith each case as determined by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 final non-appealable judgment of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) court of the Controlling Class (or other Class if required or permitted by the terms hereofcompetent jurisdiction), relating . Anything to the timecontrary notwithstanding, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall will the Trustee Rights Agent be liable for special, punitive, indirect, punitive incidental or consequential loss or damage damages of any kind whatsoever (including including, without limitation, lost profits) ), even if the Trustee Rights Agent has been advised of the likelihood of such damages loss or damages, and regardless of such the form of action.
(db) For all purposes The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any Holder with respect to any action or default by any person or entity, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon Ikena or the Surviving Company.
(c) All funds received by the Rights Agent under this IndentureAgreement that are to be distributed or applied by the Rights Agent in the performance of services hereunder (the “Funds”) shall be held by the Rights Agent as agent for ▇▇▇▇▇ and deposited in one or more bank accounts to be maintained by the Rights Agent in its name as agent for ▇▇▇▇▇. Until paid pursuant to the terms of this Agreement, the Trustee Rights Agent will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), ▇▇▇▇▇’▇ (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Rights Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Rights Agent in accordance with this paragraph, including any losses resulting from a default by any bank or financial institution or other Person. If at any time the Funds are insufficient to pay the Holders the amounts then required to be paid pursuant to this Agreement as a result of any diminution of the Funds, Parent shall promptly replenish the Funds so that the Funds are sufficient to pay the Holders the amounts then required to be paid pursuant to this Agreement. The Rights Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Rights Agent shall not be deemed obligated to have notice pay such interest, dividends or knowledge of earnings to Ikena, any Default Holder or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1other Person.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Contingent Value Rights Agreement (Ikena Oncology, Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s 's certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s person's own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Co-Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indentureit; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s 's responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon Not later than one Business Day after the Trustee receiving written receives (i) notice of assignment pursuant to Section 13(d) of the Collateral Management Agreement, (ii) a Termination Notice (as defined in the Collateral Management Agreement) or a Statement of Cause (as defined in the Collateral Management Agreement) pursuant to Section 14(a) of the Collateral Management Agreement or (iii) a notice from the Collateral Manager that an event constituting “Cause” has occurredpursuant to Section 14(b) of the Collateral Management Agreement, the Trustee shall, not later than two (2) Business Days thereafter, shall forward a copy of such notice to the Holders Noteholders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (Garrison Capital Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Following the termination of Default known to the Trustee has occurred Servicer hereunder and is continuingpending the appointment of any other Person as successor Servicer, the Trustee (for this purpose, the term includes an affiliate thereof) is hereby obligated to perform the duties of the Servicer hereunder and shall, for such period, have all of the rights of the Servicer; it being expressly understood, however, by all parties hereto, and the Owners, agree, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer pursuant to Section 8.21, the Servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or such resignation of the Servicer, and pending the appointment of any other percentage Person as successor Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgage payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this IndentureSection 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof;
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, exercise such of and
(vi) to enforce the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsMortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Certificate Insurer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof The Trustee shall require the Trustee not be required to expend or risk its own funds or otherwise incur any financial or other liability in for the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such risk or liability relates time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement;
(v) Subject to the performance other provisions of its ordinary servicesthis Agreement and without limiting the generality of this Section 10.1, including mailing the Trustee shall have no duty (A) to see any recording, filing, or depositing of notices under this IndentureAgreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate from funds available in the Certificate Account, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(vi) The Trustee shall not be accountable for the use or application of any funds paid to the Seller or the Servicer in respect of the Mortgage Loans or withdrawn from the Principal and Interest Account or the Certificate Account by the Seller or the Servicer; and
(vvii) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default or Event any of Default the events described in Sections 5.1(c), (d), (e), (f), or (g) Section 8.20 unless a Trust Responsible Officer assigned to and working in of the Corporate Trust Office Trustee shall have received written notice thereof or a Responsible Officer has actual knowledge thereof or unless written notice thereof. In the absence of any event which is in fact receipt of such an Event of Default or Default is received by notice, the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets may conclusively assume that no default or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as event described in this Section 6.18.20 has occurred.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays, counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-3)
Certain Duties and Responsibilities. (a) Except The Trustee (i) except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee Default, undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that but in the case of any such certificates or opinions which that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in of this Agreement. During the case continuance of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the TrusteeEvent of Default, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its exercise, their exercise as a prudent Person person would exercise or use under the circumstances with respect to such person's property or affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered, but prior to the Trustee assuming the duties of the Servicer pursuant to Section 8.20, shall not be obligated or otherwise responsible to perform the duties of the Servicer. Specifically, and not in limitation of the conduct foregoing, the Trustee shall have the power (but not the obligation if prior to the Trustee assuming the duties of such Person’s own affairsthe Servicer pursuant to Section 8.20):
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof;
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, all as provided in this Agreement; and
(vi) to enforce the Mortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuers or Sponsor, the Collateral Manager in accordance Certificate Insurer or, with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Certificate Insurer's consent, of the Controlling Holders of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default by the Servicer or any Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust an Authorized Officer of the Trustee assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless shall have received written notice thereof, which written notice references the Certificates, the Trust or this Agreement. In the absence of actual receipt of such notice, the Trustee may conclusively assume that there is no such default; and
(v) subject to the other provisions of this Agreement and without limiting the generality of this Section, the Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement, any Mortgage or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any event which is in fact such an Event recording or filing or depositing or to any rerecording, refiling or redepositing of Default any thereof, (B) to see to any insurance, (C) to see the payment or Default is received discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any property of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant 108 to this Agreement believed by the Trustee at the Corporate Trust Office, to be genuine and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1been signed or presented by the proper party or parties.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Equivantage Acceptance Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred and is continuingServicers hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicers it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicers, the Servicers and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicers, and pending the appointment of any other percentage Person as successor Servicer have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care to pay Compensating Interest (and skill in its exercise, to be reimbursed therefor as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsprovided herein).
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicers under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicers in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) Neither the Servicers, the Seller nor the Trustee knowingly shall take any action (other than any action expressly required by this Agreement) that would cause the Class A-7 Certificates or the Class M-1A Certificates to fail to qualify as "mortgage related securities" within the meaning of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1998-1)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that that, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral ManagerIssuer, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so promptly notify the HoldersRated Noteholders and the Hedge Counterparties.
(b) In case an Event of Default actually known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this IndentureParty, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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:
(i1) this sub-This Section 6.1(c) shall not be construed to limit the effect of sub-Section (a) of this Section 6.16.1(a);
(ii2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuers Issuer or the Collateral Manager Co-Issuer in accordance with this Indenture and/or the Controlling Party or a Majority (or such other percentage as may be required by the terms hereof) of the Aggregate Outstanding Amount of the Controlling Class (or other Class if required or permitted by the terms hereof), ) relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv4) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(1) net of the amounts specified in Section 6.8(a)(1), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Section 5, under this Indenture; and
(v5) in no event shall the Trustee shall not be liable to the Rated Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Co-Issuers (in the case of the Rated Notes other than the Class L Notes, Class M Notes and Class N Notes), the Issuer (in the case of the Class L Notes, Class M Notes and Class N Notes), the Collateral Manager and/or the Holders of the Rated Notes under the circumstances in which such damages and regardless direction is required or permitted by the terms of such actionthis Indenture.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Protection Provider Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(e), (e5.1(f), (f), 5.1(g) or (g5.1(h) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an a Protection Provider Default, Event of Default or Default such a Default, as the case may be, is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or such a Default, as the case may be, such reference shall be construed to refer only to such an Event of Default or Default such a Default, as the case may be, of which the Trustee is deemed to have notice as described in this Section 6.16.1(d).
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.16.
(f) The Trustee shall, upon receipt of reasonable (but no less than three Business Days’) prior written notice, permit any representative of a Holder of a Rated Note or a Hedge Counterparty, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Rated Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Holder) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Rated Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Rated Notes; provided that under no circumstances shall a Hedge Counterparty be permitted to review any documentation containing the names or other indicia of identity of any of the Noteholders unless any such information (including the number of shares held by such Noteholder) has been redacted from such documentation.
(g) With respect to the security interests created hereunder, the Trustee acts as a fiduciary for the Rated Noteholders only, and serves as a collateral agent for the other Secured Parties.
Appears in 1 contract
Sources: Indenture (Northstar Realty)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture or other Transaction Documents to which it is a party, and no implied covenants or obligations shall be read into this Indenture or such other Transaction Documents against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a the Majority of the Controlling ClassNoteholders, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section (c) shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer, the Valuation Agent or the Collateral Manager in accordance with this Indenture and/or a the Majority Noteholders (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture or any other Transaction Document shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability is reasonably expected not to exceed the amount available for payment to the Trustee pursuant to Section 6.7(a) on the immediately succeeding Payment Date, the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under Article 5, under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d5.1(d), (e5.1(e), (f5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(j), 5.1(k) or (g5.1(l) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Collateral or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) one Business Days Day thereafter, forward such notice to notify the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating AgencyNote Registers).
(f) Whether or not therein expressly so provided, every provision of this Indenture and each other Transaction Document to which the Trustee is a party relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee shall have no duty to (A) monitor or verify whether (i) any Holder (or beneficial owner) is a Section 13 Banking Entity or (ii) the Withdrawal Conditions are satisfied or (B) determine or verify (i) amounts owing under the Global Master Repurchase Agreement or (ii) whether any Portfolio Asset is a Zero Value Portfolio Asset.
Appears in 1 contract
Sources: Indenture (BC Partners Lending Corp)
Certain Duties and Responsibilities. (a) Except The Trustee (i) except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee Default, undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in of this Agreement. During the case continuance of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the TrusteeEvent of Default, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this IndentureAgreement, and use the same degree of care and skill in its exercise, their exercise as a prudent Person person would exercise or use under the circumstances with respect to such person's property or affairs.
(b) Notwithstanding the appointment of the Servicer hereunder, the Trustee is hereby empowered, but prior to the Trustee assuming the duties of the Servicer pursuant to Section 8.20, shall not be obligated or otherwise responsible to perform the duties of the Servicer. Specifically, and not in limitation of the conduct foregoing, the Trustee shall have the power (but not the obligation if prior to the Trustee assuming the duties of such Person’s own affairsthe Servicer pursuant to Section 8.20):
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof;
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, all as provided in this Agreement; and
(vi) to enforce the Mortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuers or Sponsor, the Collateral Manager in accordance Certificate Insurer or, with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Certificate Insurer's consent, of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default by the Servicer unless the Trustee shall have received written notice thereof. In the absence of actual receipt of such notice, the Trustee may conclusively assume that there is no such default; and
(v) subject to the other provisions of this Agreement and without limiting the generality of this Section, the Trustee shall have no duty (A) to see to any recording, filing, or Event depositing of Default described in Sections 5.1(c)this Agreement, any Mortgage or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (d)B) to see to any insurance, (e)C) to see the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any property of the Trust, (f), D) to confirm or (g) unless a Trust Officer assigned to and working in verify the Corporate Trust Office has actual knowledge thereof or unless written notice contents of any event which is in fact such an Event reports or certificates of Default or Default is received the Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee at the Corporate Trust Office, to be genuine and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1been signed or presented by the proper party or parties.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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 and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties and powers and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its reasonable satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Equivantage Acceptance Corp)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that that, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default actually known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Bank Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required or permitted by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indentureit; and
(v) in no event shall the Trustee (or the Bank or any Affiliate thereof acting in any capacity) be liable for special, indirect, punitive or consequential loss or damage (including diminution in value or lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Bank Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice (which notice may be delivered via email in the form of a signed .pdf) of any event which is in fact such an Event of Default or Default is received by a Bank Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets Issuer or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.16.1 and Section 6.3.
(e) Upon Not later than one Business Day after the Trustee receiving written receives (i) notice of assignment pursuant to Section 13(d) of the Collateral Management Agreement, (ii) a Termination Notice (as defined in the Collateral Management Agreement) or a Statement of Cause (as defined in the Collateral Management Agreement) pursuant to Section 14(a) of the Collateral Management Agreement or (iii) a notice from the Collateral Manager that an event constituting “Cause” has occurredpursuant to Section 14(b) of the Collateral Management Agreement, the Trustee shall, not later than two (2) Business Days thereafter, shall forward a copy of such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Tax Event unless it receives written notice of the occurrence of a Tax Event from the Collateral Manager.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee (A) undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (B) shall serve as the Trustee at all times under this Agreement, and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Notwithstanding the appointment of Default known to the Trustee has occurred Servicer and is continuingthe Special Servicer hereunder, the Trustee shallis hereby empowered to perform the duties of the Servicer and the Special Servicer it being expressly understood, however, that the foregoing describes a power and not an obligation of the Trustee, and that all parties hereto agree that, prior to the receipt of directions, if any, from a Majority any termination of the Controlling ClassServicer and the Special Servicer, the Servicer and the Special Servicer and, thereafter, the Trustee or any other successor servicer shall perform such duties. Specifically, and not in limitation of the foregoing, the Trustee shall upon termination or resignation of the Servicer and the Special Servicer, and pending the appointment of any other percentage Person as successor Servicer or successor Special Servicer have the power and duty during its performance as successor Servicer or successor Special Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this Indenture, exercise such Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14;
(v) to enforce the rights Mortgage Loans; and
(vi) to make Delinquency Advances and powers vested in it by this Indenture, Servicing Advances and use the same degree of care to pay Compensating Interest (and skill in its exercise, to be reimbursed therefor as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsprovided herein).
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be personally liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven 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 Issuers or the Collateral Manager Owners of a majority in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Percentage Interest of the Controlling Certificates of the affected Class (or other Class if required or permitted by the terms hereof), Classes relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee Agreement relating to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such actionCertificates.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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. None of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicers under this Agreement, except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer and the Special Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
(h) None of the Servicer, the Special Servicer, the Master Servicer, the Seller and the Trustee knowingly shall take any action (other than any action expressly required by this Agreement) that would cause the Class A-7 Certificates, the Class A-8 Certificates or the Class M-1A Certificates to fail to qualify as "mortgage related securities" within the meaning of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Secs Corp Mort Loan Trust 1998-3)
Certain Duties and Responsibilities. The Issuer hereby irrevocably constitutes and appoints the Indenture Trustee and any Responsible Officer thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in place and stead of the Issuer and in the name of the Issuer or in its own name or in the name of a nominee, from time to time in the Indenture Trustee’s discretion, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Indenture, all as set forth in this Section.
(a) The rights, duties and liabilities of the Indenture Trustee in respect of this Indenture shall be as follows:
(i) The Indenture Trustee shall have the full power and authority to do all things not inconsistent with the provisions of this Indenture that it may deem advisable in order to enforce the provisions hereof or to take any action with respect to a default or an Event of Default hereunder, or to institute, appear in or defend any suit or other proceeding with respect hereto, or to protect the interests of the Noteholders and the Insurer. The Issuer shall prepare and file or cause to be filed, at the Issuer’s expense, a UCC Financing Statement and any continuation statements, describing the Issuer as debtor, the Indenture Trustee as secured party and the Collateral as the collateral, in all appropriate locations in the State of Delaware promptly following the initial issuance of the Notes, and the Indenture Trustee shall prepare and file at each such office continuation statements with respect thereto, in each case within six months prior to each fifth anniversary of the original filing. The Indenture Trustee is hereby authorized and obligated to make, at the expense of the Issuer, all required filings and refilings of which the Indenture Trustee becomes aware, necessary to preserve the liens created by the Mortgages and this Indenture as provided therein and herein. The Indenture Trustee shall not be required to take any action to exercise or enforce the trusts hereby created which, in the opinion of the Indenture Trustee, shall be likely to involve expense or liability to the Indenture Trustee, unless the Indenture Trustee shall have received an agreement satisfactory to it in its sole reasonable discretion to indemnify it against such liability and expense. Except as otherwise expressly provided herein, the Indenture Trustee shall not be required to ascertain or inquire as to the performance or observance of any of the covenants or agreements contained herein, or in any other instruments to be performed or observed by the Issuer.
(ii) Subject to the other provisions of this Article V, the Indenture Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders, or other instruments furnished to the Indenture Trustee that are specifically required to be furnished pursuant to any provisions of this Indenture, shall examine them to determine whether they are on their face in the form required by this Indenture to the extent expressly set forth herein. If any such instrument is found on its face not to conform to the requirements of this Indenture in a material manner, the Indenture Trustee shall take such action as it deems appropriate to have the instrument corrected. The Indenture Trustee shall not incur any liability in acting upon any signature, notice, request, consent, certificate, opinion, or other instrument reasonably believed by it to be genuine. In administering the trusts hereunder, the Indenture Trustee may execute any of the trusts or powers hereunder directly or through its agents or attorneys, provided that it shall remain liable for the acts of all such agents and attorneys. The Indenture Trustee may, at its own expense (except as otherwise provided in Section 5.04), consult with counsel, accountants and other professionals to be selected and employed by it, and the Indenture Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice of any such Person nor for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts.
(iii) The Indenture Trustee shall not, except as otherwise provided in Section 5.01(a)(i), have any duty to make, arrange or ensure the completion of any recording, filing or registration of any instrument or other document (including any UCC Financing Statements), or any amendments or supplements to any of said instruments or to determine if any such instrument or other document is in a form suitable for recording, filing or registration, and the Indenture Trustee shall not have any duty to make, arrange or ensure the completion of the payment of any fees, charges or taxes in connection therewith.
(iv) Whenever in performing its duties hereunder, the Indenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee may, in the absence of bad faith on the part of the Indenture Trustee, rely upon (unless other evidence in respect thereof be specifically prescribed herein) an Officer’s Certificate of the Issuer GP on behalf of the Issuer, and such Officer’s Certificate shall be full warrant to the Indenture Trustee for any action taken, suffered or omitted by it on the faith thereof.
(v) Except in its capacity as successor to the Property Manager, the Indenture Trustee shall not have any obligations to see to the payment or discharge of any liens (other than the liens of this Indenture and the Mortgages) upon the Collateral, or to see to the application of any payment of the principal of or interest on any note secured thereby or to the delivery or transfer to any Person of any property released from any such lien, or to give notice to or make demand upon any mortgagor, mortgagee, trustor, beneficiary or other Person for the delivery or transfer of any such property. The Indenture Trustee (and any successor trustee or co-trustee in its individual capacity) nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens or encumbrances on the Collateral, arising as a result of the Indenture Trustee (or such successor trustee or co-trustee, as the case may be) acting negligently, in bad faith or with willful misconduct in its capacity as Indenture Trustee (or such successor trustee or co-trustee, as the case may be).
(vi) The Indenture Trustee shall not be concerned with or accountable to any Person for the use or application of any deposited monies or of any property or securities or the proceeds thereof that shall be released or withdrawn in accordance with the provisions hereof or of any property or securities or the proceeds thereof that shall be released from the lien hereof or thereof in accordance with the provisions hereof or thereof and the Indenture Trustee shall not have any liability for the acts of other parties that are not in accordance with the provisions hereof.
(b) The rights, duties and liabilities of the Indenture Trustee in respect of the Collateral and this Indenture, in addition to those set forth in Section 5.01(a), shall be as follows:
(i) except during the continuance of an Event of Default known with respect to the Trustee:
(i) Notes, the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(ii) the Indenture Trustee may, in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements hereofof this Indenture; provided that but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof and shall promptlyof this Indenture, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersextent expressly set forth herein.
(bc) In Subject to Section 4.12 hereof, in case an Event of Default known to the Indenture Trustee with respect to the Notes has occurred and is continuing, the Indenture Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, shall exercise such of the rights and powers vested in it by this IndentureIndenture and the Mortgages, and use the same degree of care and skill in its their exercise, as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s his own affairs.
(cd) No provision hereof of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsections (a), (b) or (c) of this Section 6.1Section;
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer, unless it shall be proven proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction directions of the Issuers Controlling Party or the Collateral Manager Noteholders of more than 50% (unless a lower or higher percentage of Noteholders is expressly permitted or required to authorize such action hereunder, in accordance with this Indenture and/or a Majority (which case such lower or such other percentage as may be required by the terms hereofhigher percentage) of the Controlling Class (or other Class if required or permitted by Aggregate Note Principal Balance, as the terms hereof)case may be, relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture;Indenture with respect to the Notes; and
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Indenture Trustee shall not be deemed to have notice or charged with knowledge of a default in the observance of any Default covenant contained in Section 9.06 or Event Article X unless either (i) a Responsible Officer of Default described in Sections 5.1(c), (d), (e), (f), the Indenture Trustee shall have actual knowledge of such default or (gii) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of such default shall have been given by the Issuer or by any event which is in fact such an Event of Default or Default is Noteholder to and received by a Responsible Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Indenture Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon The Issuer hereby directs the Indenture Trustee receiving written notice from to enter into the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) Collection Account Agreement and the Rating AgencyLockbox Account Agreement.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Indenture (Trustreet Properties Inc)
Certain Duties and Responsibilities. (a) Except during The Trustee shall have and be subject to all the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, responsibilities specified with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii. For purposes of Sections 315(a) in and 315(c) of the absence of bad faith on its partTrust Indenture Act, the Trustee may conclusively rely, term "default" is hereby defined as to the truth an Event of the statements Default which has occurred and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersis continuing.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates it.
(c) Notwithstanding anything contained in this Indenture to the performance contrary, the duties and responsibilities of its ordinary services, including mailing of notices the Trustee under this Indenture; and
(v) in no event Indenture shall be subject to the protections, exculpations and limitations on liability afforded to the Trustee be liable for specialunder the provisions of the Trust Indenture Act. For the purposes of Sections 315(b)(2) and 315(d)(2) of the Trust Indenture Act, indirectthe term "responsible officer" is hereby defined as a Responsible Officer and the chairman or vice chairman of the board of directors, punitive the chairman or consequential loss vice chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer any assistant treasurer, the cashier, any assistant cashier, any trust officer or damage (including lost profits) even if assistant trust officer, the controller and any assistant controller of the Trustee, or any other officer of the Trustee has been advised customarily performing functions similar to those performed by a Responsible Officer or any of the likelihood above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such damages his or her knowledge of and regardless of such actionfamiliarity with the particular subject.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
Appears in 1 contract
Sources: Indenture (For Unsecured Debt Securities) (National Fuel Gas Co)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Collateral Trustee:
(i) the Collateral Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinherein and the Credit Agreement, and no implied covenants or obligations shall be read into this Indenture or the Credit Agreement against the Collateral Trustee; and
(ii) in the absence of bad faith on its part, the Collateral Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Trustee and conforming to the requirements hereofof this Indenturehereof or the Credit Agreement; provided that in the case of any such certificates or opinions which by any provision hereof or of the Credit Agreement are specifically required to be furnished to the Collateral Trustee, the Collateral Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenturehereof or the Credit Agreement and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Collateral Trustee within 15 days after such notice from the Collateral Trustee, the Collateral Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Collateral Trustee has occurred and is continuing, the Collateral Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof of this Indenturehereof or the Credit Agreement shall be construed to relieve the Collateral Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Collateral Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Collateral Trustee was negligent in ascertaining the pertinent facts;
(iii) the Collateral 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 Issuers IssuersIssuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Collateral Trustee, or exercising any trust or power conferred upon the Collateral Trustee, under this Indenture;
(iv) no provision hereof of this Indenturehereof or the Credit AgreementshallAgreement shall require the Collateral Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services, including mailing of notices under this Indenture; and
(v) in no event shall the Collateral Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Collateral Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the Collateral Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Collateral Trustee at the Corporate Trust Office, and such notice references the Secured Debt and Subordinated Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Collateral Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Collateral Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereof; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form The Rights Agent shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof shall be construed to relieve the Trustee from any liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this sub-Section shall not be construed to limit the effect of sub-Section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action actions taken suffered or omitted to be taken by it in good faith in accordance with the direction of the Issuers or the Collateral Manager in accordance connection with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof)Agreement, relating except to the timeextent of its willful misconduct, method and place bad faith or gross negligence (each as determined by a final non-appealable judgment of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under a court of competent jurisdiction). No provision of this Indenture;
(iv) no provision hereof shall Agreement will require the Trustee Rights Agent to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates powers. Notwithstanding anything contained herein to the performance of its ordinary servicescontrary, including mailing of notices (i) the Rights Agent’s aggregate liability under this Indenture; and
Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Rights Agent as fees and charges during the t twelve (v12) months immediately preceding the event for which recovery from the Rights Agent is being sought, but not including reimbursable expenses, and (ii) the Rights Agent shall in no event shall the Trustee be liable for special, indirectpunitive, punitive incidental, indirect or consequential loss losses or damage damages of any kind whatsoever (including but not limited to lost profits) ), even if the Trustee Rights Agent has been advised of the likelihood of such damages loss or damage and regardless of such the form of action.
(db) For all purposes The Holder Representative may in its discretion proceed to and shall be entitled and empowered to protect and enforce its rights and the rights of the Holders herein by such appropriate arbitration proceedings as the Holder Representative shall deem most effectual to protect and enforce any such rights; provided, however the Rights Agent may not act on behalf of the Holders or the Holder Representative in any dispute relating to or arising under Section 4.3 or relating to whether a CVR Transaction has occurred or the amount of any CVR Payment. The Rights Agent shall have the right, but not the obligation, to enforce any right of action under this IndentureAgreement and any action, the Trustee shall not be deemed to have notice suit or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received proceeding instituted by the Trustee at Rights Agent on behalf of the Corporate Trust OfficeHolders will be brought in its name as Rights Agent, and such notice references any recovery of judgment will be for the Securities generallyratable benefit of all the Holders, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names respective rights or interests may appear in (after deducting any costs or expenses of the Register or the Share Register, as applicable) and the Rating AgencyRights Agent).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Appears in 1 contract
Sources: Contingent Value Rights Agreement (F-Star Therapeutics, Inc.)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the The Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Trust Agreement, the Lease Agreement and the Ground Lease (collectively referred to herein as the “Agreements”), and no implied covenants or obligations shall be read into this Indenture the Agreements against the Trustee; and
(ii) in In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof the Agreements; provided that but in the case of any such certificates or opinions which that are required by any provision hereof are specifically required to be furnished to the Trustee, or thereof the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in of the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersAgreements.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage as permitted by this Indenture, shall exercise such of the rights and powers vested in it by this IndentureTrust Agreement and the other Agreements, including those described in (a) above, and use the same degree of care and skill in its their exercise, as a prudent Person corporate indenture trustee would exercise or use under the circumstances in the conduct of such Personperson’s own affairsaffairs in exercising the rights or remedies or performing any of its duties hereunder.
(c) No provision hereof of this Trust Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconductmisconduct or breach of trust, except that:
(i) this sub-Section This subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the The Trustee shall not be liable for any error of judgment made in good faith and without negligence by a Trust Officerchairman or vice-chairman of the board of directors, unless it shall be proven that the chairman or vice-chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any cashier or assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller or any other officer of the Trustee was negligent in ascertaining customarily performing functions similar to those performed by any of the pertinent factsabove designated officers or, with respect to a particular matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject;
(iii) the The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith and without negligence in accordance with the direction of the Issuers or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) Owners of the Controlling Class (or other Class if required or permitted by the terms hereof), Outstanding Certificates as provided herein relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under pursuant to this Indenture;Trust Agreement or the other Agreements; and
(iv) Except for the obligation (A) to make payment of principal, interest, or premium, if any, evidenced by the Certificates to the Owners thereof pursuant to Section 5.4 hereof or (B) to notify the Owners of any Event of Default pursuant to Section 13.9 hereof, no provision hereof of this Trust Agreement or the other Agreements shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability (including, without limitation, any and all environmental liability) in the performance of any of its duties hereunderhereunder or thereunder, or in the exercise of any of its rights or powers contemplated hereunderpowers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it or other assurance against such risk or liability is not reasonably assured to it unless it. Without limiting the generality of the foregoing, such risk other assurance may include, but shall not be limited to, environmental audits or liability relates other evidence satisfactory to the performance Trustee that it will not incur liability by reason of any remedial action taken pursuant hereto. The Trustee may, nevertheless, begin suit, or appear in and defend suit, or do anything else in its ordinary servicesjudgment properly to be done by it as the Trustee, without prior assurance of indemnity, and in such case shall be entitled to reimbursement by the Lessee for all reasonable costs, expenses, including mailing of notices under this Indenture; and
(v) in no event shall attorneys’ fees and expenses, and other fees, and all other reasonable disbursements, including its own fees, and for all liability and damages suffered by the Trustee be liable in connection therewith except for specialthe Trustee’s negligence, indirect, punitive willful misconduct or consequential loss or damage (including lost profits) even if the Trustee has been advised breach of the likelihood of such damages and regardless of such actiontrust.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture Trust Agreement or the other Agreements relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) The Trustee shall not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not limited to, Acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other occurrences beyond the control of the Trustee; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(f) The Trustee shall accept and act upon facsimile transmissions of written instructions and/or directions pursuant to this Trust Agreement provided, however, that:
(a) subsequent to such facsimile transmission of written instructions and/or directions the Trustee shall forthwith receive the originally executed instructions and/or directions and (b) such originally executed instructions and/or directions shall be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions.
Appears in 1 contract
Sources: Trust Agreement
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
The Trustee (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Agreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished pursuant to the Trustee and conforming to the requirements hereofof this Agreement; provided that 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 substantially conform to the requirements hereof and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holdersthis Agreement.
(b) In case an Event Following the removal of Default known the Oversight Agent hereunder, in the event that either (i) prior to such removal, the servicing of the Mortgage Loans had previously been transferred to the Trustee has occurred Oversight Agent or (ii) the Servicer is removed hereunder, and is continuingpending the appointment of any other Person as successor Servicer, the Trustee (for this purpose, the term includes an affiliate thereof) shall and is hereby empowered to perform the duties of the Servicer hereunder and shall, prior to the receipt of directionsfor such period, if any, from a Majority have all of the Controlling Classrights of the Servicer. Specifically, and not in limitation of the foregoing, the Trustee shall upon removal of the Oversight Agent, and pending the appointment of any other Person as successor Oversight Agent or such other percentage Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgage payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption and substitution agreements as permitted by this IndentureSection 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section 8.14 hereof; 203968.5d
(v) to make Delinquency Advances and Servicing Advances and to pay Compensating Interest, exercise such of and
(vi) to enforce the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsMortgage Loans.
(c) No provision hereof of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, act or its own willful misconduct, except that:
(i) this sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust an Authorized Officer, unless it shall be proven proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Certificate Insurer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Owners of a majority in Percentage Interest of the Certificates of the affected Class (or other Class if required or permitted by Classes and the terms hereof), Certificate Insurer relating to the time, method and place of conducting any Proceeding proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this IndentureAgreement relating to such Certificates;
(iv) no provision hereof The Trustee shall require the Trustee not be required to expend or risk its own funds or otherwise incur any financial or other liability in for the performance of any of its duties hereunder, hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such risk or liability relates time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement;
(v) Subject to the performance other provisions of its ordinary servicesthis Agreement and without limiting the generality of this Section 10.1, including mailing the Trustee shall have no duty (A) to see any recording, filing, or depositing of notices under this IndentureAgreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate from funds available in the Certificate Account, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties; 203968.5d
(vi) The Trustee shall not be accountable for the use or application of any funds paid to the Seller or the Servicer in respect of the Mortgage Loans or withdrawn from the Principal and Interest Account or the Certificate Account by the Seller or the Servicer; and
(vvii) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such damages and regardless of such action.
(d) For all purposes under this Indenture, the The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default default or Event any of Default the events described in Sections 5.1(c), (d), (e), (f), or (g) Section 8.20 unless a Trust Responsible Officer assigned to and working in of the Corporate Trust Office Trustee shall have received written notice thereof or a Responsible Officer has actual knowledge thereof or unless written notice thereof. In the absence of any event which is in fact receipt of such an Event of Default or Default is received by notice, the Trustee at the Corporate Trust Office, and such notice references the Securities generally, the Issuer, the Co-Issuer, the Assets may conclusively assume that no default or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as event described in this Section 6.18.20 has occurred.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(fd) Whether or not therein expressly so provided, every provision of this Indenture Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1Section.
(e) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or 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.
(f) The permissive right of the Trustee to take actions enumerated in this Agreement shall not be construed as a duty and the Trustee shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays, counsel fees and other reasonable disbursements and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-2)
Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the TrusteeDefault:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth hereinin this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of manifest error, or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate Certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the HoldersNoteholders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, Class (or such other percentage as permitted by this IndentureNoteholders to the extent provided in Article 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Personperson’s own affairs.
(c) If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
(d) No provision hereof 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 sub-Section subsection shall not be construed to limit the effect of sub-Section subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers or the Collateral Manager Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee, Trustee under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(i)(3) and Section 11.1(a)(ii)(1) net of the amounts specified in Section 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to the performance of its ordinary services, including mailing of notices services under this Indenture, except where this Indenture provides otherwise; and
(v) in no event shall the Trustee shall not be liable to the Noteholders for special, indirect, punitive any action taken or consequential loss or damage (including lost profits) even if omitted by it at the Trustee has been advised direction of the likelihood Issuer, the Co-Issuer, the Collateral Manager, the Controlling Class and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of such damages and regardless of such actionthis Indenture.
(de) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(cSection 5.1(d), (d5.1(f), (e5.1(g), (f), 5.1(h) or (g5.1(i) or any Default described in Section 5.1(e) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references references, as applicable, the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” has occurred, the Trustee shall, not later than two (2) Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of Section 6.1(a), 6.1(b), 6.1(c), 6.1(d) and 6.1(e).
(g) The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Collateral Manager or the Rating Agencies, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Notes.
(h) On the Closing Date in respect of the Initial Certification, and within 90 days after the Closing Date in respect of the Final Certification, the Trustee shall examine the Collateral File (as such term is defined in the Seller Collateral Debt Securities Transfer Agreements) in its possession, and shall deliver to the Depositor and the Co-Issuers a certification (the “Initial Certification” and the “Final Certification,” respectively, in the respective forms set forth as Exhibit L-1 and Exhibit L-2 hereto), which may be in electronic format (i) in the case of the Initial Certification, as to each Collateral Debt Security listed on Schedule E, except as may be specified in the schedule of exceptions to Collateral File delivery attached thereto, to the effect that each promissory note, subordinate note or mezzanine note has been endorsed as provided in the definition of Collateral File, and (ii) in the case of the Final Certification, as to each Collateral Debt Security listed on Schedule E, except as may be specified in the schedule of exceptions to Collateral File delivery attached thereto, to the effect that: (A) all documents pursuant to the definition of Collateral File required to be included in the Collateral File (to the extent required to be delivered pursuant to this Section 6.1Agreement), and with respect to all documents specified in the other clauses of the definition of Collateral File to the extent actually known by a responsible officer of the Trustee to be required pursuant to this Agreement, are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Collateral Debt Security and (C) each promissory note, subordinate note or mezzanine note has been endorsed as provided in the definition of Collateral File.
(i) It is acknowledged that the Trustee is under no duty or obligation (A) to determine whether any of the documents specified in the Collateral File exist or are required to be delivered by the Seller or any other Person or (B) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Collateral Debt Securities delivered to it to determine that the same are genuine, enforceable, or appropriate for the represented purpose or that they are other than what they purport to be on their face.
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Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default known to the Trustee:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth herein, 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 of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements hereofof this Indenture; provided that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements hereof of this Indenture and shall promptly, but in any event within three (3) Business Days in the case of an Officer’s certificate furnished by the Collateral Manager, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Holders.
(b) In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class, or such other percentage or Class as permitted by this Indenture, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision hereof 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 sub-Section section shall not be construed to limit the effect of sub-Section section (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(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 Issuers Issuer or the Collateral Manager in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Controlling Class (or other Class if required or permitted by the terms hereof), relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no provision hereof of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Indenture; and
(v) in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage (including lost profits) even if the Trustee has been advised of the likelihood of such losses or damages and regardless of such action.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default described in Sections 5.1(c), (d), (e), or (f), or (g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities Notes generally, the Issuer, the Co-Issuer, the Assets or this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made herein to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this Section 6.1.
(e) Upon the Trustee receiving written notice from the Collateral Manager that an event constituting “Cause” as defined in the Collateral Management Agreement has occurred, the Trustee shall, not later than two (2) three Business Days thereafter, forward such notice to the Holders (as their names appear in the Register or the Share Register, as applicable) and the Rating Agency).
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
(g) The Trustee is hereby directed to accept and acknowledge the Risk Retention Letter; provided, that the Trustee shall have no obligation to monitor any party’s compliance with its obligations under the Risk Retention Letter or any obligations with respect to the U.S. Risk Retention Rules.
(h) The Trustee shall have no duty to monitor or verify whether the Closing Date Participation Condition is satisfied.
(i) The Trustee shall have no obligation to appoint or monitor any Partnership Representative or Tax Matters Partner, or otherwise perform the duties of any such Person.
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