Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (b) Except during the continuance of an Event of Default known to the Trustee: (1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5. (d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1. (e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it. (f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 2 contracts
Sources: Indenture (Agere Systems Inc), Indenture (Agere Systems Inc)
Duties of the Trustee. (a) If an Amortization Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Responsible Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default known to the TrusteeAmortization Event:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.59.3.
(iv) The Trustee shall not be charged with knowledge of any Amortization Event, Custody Revocation Trigger Event, ARG Liquidation Event, any default by any Leasing Company, ARG or other Person in the performance of its obligations under this Indenture or under any Collateral Agreement or Related Document (as such term is defined in the Leasing Company Base Indentures) or any other event described in Section 8.10(a) unless a Responsible Officer of the Trustee receives written notice of such failure from ARG, any Leasing Company Trustee, any Leasing Company or any Holders of Notes evidencing not less than 10% of the aggregate principal amount of the Notes of any Series adversely affected thereby or otherwise has actual knowledge thereof.
(d) Whether or not therein expressly so provided, every provision of Notwithstanding anything to the contrary contained in this Indenture that is in or any way related to of the Trustee is subject to paragraphs (a)Related Documents, (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability if there is reasonable ground (as determined by the Trustee in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Responsible Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by law or the Related Documents. The Trustee may allow and credit to ARG interest agreed upon by ARG and the Trustee from time to time as may be permitted by law.
Appears in 2 contracts
Sources: Third Amended and Restated Series 2004 1 Supplement (Vanguard Car Rental Group Inc.), Base Indenture (Vanguard Car Rental Group Inc.)
Duties of the Trustee. (a) If In the event an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(b) Except during Prior to the continuance occurrence of an Event of Default known to and after the Trusteecuring or waiving of all Events of Default that may have occurred:
(1i) The the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; Trustee; and
(2ii) In in the absence of bad faith and willful misconduct on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. HoweverIndenture; but, in the case of any such certificates or opinions which that by any provision provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(1i) this paragraph does subsection shall not be construed to limit the effect of paragraph Subsection (b) or paragraph (e) of this Section;Section 7.01;
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer Officers of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; andfacts;
(3iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of not less than a direction received by it pursuant majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to Section 6.5.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; and
(div) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 2 contracts
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability liabilities for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph Section 7.01(c) does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 7.01(b);
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.17.01 and Section 7.02.
(e) No provision of this Indenture shall require Neither the Trustee nor the Second Lien Collateral Agent shall be under any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and or powers hereunderunder this Indenture or the Security Documents, includingas applicable, without limitationat the request or direction of any of the Holders unless the Holders have offered, the provisions of Section 6.5 hereofand, if it shall have reasonable grounds for believing that repayment of such funds requested, provided to the Trustee or adequate the Second Lien Collateral Agent, as the case may be, indemnity or security satisfactory to the Trustee or the Second Lien Collateral Agent, as the case may be, against such risk of any loss, liability is not reasonably assured to itor expense.
(f) The Trustee shall not be liable for interest on or the investment of any money received received, or for any loss which may result from any investment or sale of investment, by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 2 contracts
Sources: Indenture (Alta Equipment Group Inc.), Indenture (Alta Equipment Group Inc.)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, and a Responsible Officer of the Trustee shall has written notice or actual knowledge of the same, then, without limiting the generality of Section 10.02(F), the Trustee will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may may, without investigation, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However; provided, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trusteehowever, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs clauses (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Unless a Responsible Officer of the Trustee has received notice from the Company that Additional Interest is owing on the Notes or that the Company has elected to pay Special Interest on the Notes, the Trustee may assume no Additional Interest or Special Interest, as applicable, is payable.
(H) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee will not be charged with knowledge of any document or agreement other than this Indenture and the Notes and will not be liable in its individual capacity for the obligations evidenced by the Notes.
(J) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Rivian Automotive, Inc. / DE), Indenture (Rivian Automotive, Inc. / DE)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her such person's own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1i) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 7.01;
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectofficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05 of this Indenture.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (a), (b), (c) and (ec) of this Section 7.17.01.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing to believe that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) 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 7.01 and to the provisions of the TIA.
Appears in 2 contracts
Sources: Indenture (Telemundo Group Inc), Indenture (Telemundo Group Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof or any conclusions therein.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer of the Trustee by the Issuer, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or other facts stated therein)use under the circumstances in the conduct of such person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph paragraphs (ba) or paragraph (ed) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fe) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 2 contracts
Sources: Senior Indenture (Infosat Communications LP), Senior Subordinated Indenture (Infosat Communications LP)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person Person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) The Mexican Trustee shall (i) confirm that the proceeds from the offering and sale of the Notes are used to fund the purchase of the capped called transactions described in the Offering Memorandum and for general corporate purposes, (ii) cause the registration of a certified copy of the public instrument containing the notarization of a Spanish version of this Indenture with the Public Registry of Commerce and obtain the registration thereof in the event that the Issuer fails to comply with its obligation to register such public instrument as set forth in Section 4.02(e)(i), and (iii) exercise all rights and comply with all obligations set forth in the LGTOC, including those set forth in Article 217 (Sections I, V, VII and VIII) of the LGTOC.
(c) Except during the continuance of an Event of Default known to the Trustee:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(cd) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1i) this This paragraph does not limit the effect of paragraph (b) or paragraph (ec) of this SectionSection 7.01;
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(de) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, 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) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (ac), (bd), (c) and (e) of this Section 7.17.01.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(fg) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the CompanyIssuer. Money held in trust by the Trustee need not be segregated from other funds or assets except to the extent required by law.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Appears in 2 contracts
Sources: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Duties of the Trustee. (a) If an Amortization Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Trust Officer has not received written notice; and provided, further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default known to the TrusteeAmortization Event:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.59.4.
(iv) The Trustee shall not be charged with knowledge of any default by any Lessee in the performance of its obligations under any Related Document, unless a Trust Officer of the Trustee receives written notice of such failure from such Lessee or any Holders of Notes evidencing not less than 10% of the aggregate principal amount of the Notes of any Series adversely affected thereby.
(d) Whether or not therein expressly so provided, every provision of Notwithstanding anything to the contrary contained in this Indenture that is in or any way related to of the Trustee is subject to paragraphs (a)Related Documents, (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability if there is reasonable ground (as determined by the Trustee in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Transfer Agent and Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may 100 be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by law or the Related Documents. The Trustee may allow and credit to AFC-II interest agreed upon by AFC-II and the Trustee from time to time as may be permitted by law.
Appears in 2 contracts
Sources: Base Indenture (Avis Rent a Car Inc), Base Indenture (Avis Rent a Car Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing or the Company has failed to make a payment in respect of the Special Mandatory Redemption of which, in each case, a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default or failure to make such payment shall not be required have been given to confirm the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 2 contracts
Sources: Indenture (Aleris Ohio Management, Inc.), Indenture (Aleris International, Inc.)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconductmisconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.7.07; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have has reasonable grounds for believing to believe that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(fD) Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to the provisions of this Section 10.01.
(H) The Trustee will not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the Notes.
(I) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
(J) Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
Appears in 2 contracts
Sources: Indenture (Coinbase Global, Inc.), Indenture (Coinbase Global, Inc.)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However; provided, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trusteehowever, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs clauses (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to this Section 10.01.
(H) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
Appears in 2 contracts
Sources: Indenture (Cardlytics, Inc.), Indenture (Mirum Pharmaceuticals, Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default;
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith faith, gross negligence or willful misconduct on its partpart (as determined by a final non-appealable order of a court of competent jurisdiction), the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including the accuracy of any mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which written notice of such Event of Default shall have been given to a Responsible Officer of the Trustee, by the Issuer, any other obligor of the Notes or other facts stated therein)by Holders of at least 25% of the aggregate principal amount of the Notes, the Trustee shall 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) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconductmisconduct (in each case, as determined by a final non-appealable order of a court of competent jurisdiction), except that:
(1) this paragraph does clause (c) shall not be construed to limit the effect of paragraph clause (b) or paragraph (ea) of this SectionSection 6.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 6.01.
Appears in 2 contracts
Sources: Indenture (Manitowoc Co Inc), Indenture (Manitowoc Co Inc)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to this Section 10.01.
(H) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
Appears in 2 contracts
Sources: Indenture (Cytokinetics Inc), Indenture (DigitalOcean Holdings, Inc.)
Duties of the Trustee. (a) If an Amortization Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and the other Related Documents, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that, subject to clause (c) below, the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Trust Officer has not received written notice.
(b) Except during the occurrence and continuance of an Event of Default known to the TrusteeAmortization Event:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall be read into this the Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this the Indenture. However; 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 such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Except as otherwise provided, the delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ZVF’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.59.3.
(iv) The Trustee shall not be charged with knowledge of any default by any Person in the performance of its obligations under any Related Document or any other event that would constitute an Amortization Event, unless a Trust Officer receives written notice of such failure from ZVF, Zipcar or any Indenture Noteholder or otherwise has actual knowledge thereof.
(d) Whether Notwithstanding anything to the contrary contained in this Base Indenture or not therein expressly so providedany of the Related Documents, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability (financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, otherwise) if it shall have there are reasonable grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of the Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) In the event that the Paying Agent or the Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Registrar, as the case may be, under the Indenture, the Trustee, if it is the same entity as or is affiliated with such Paying Agent or the Registrar, shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by lawlaw or the Related Documents.
(g) Whether or not therein expressly so provided, every provision of the Indenture relating to the conduct of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 10.1.
(h) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Series-Specific Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any applicable Segregated Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the related Series-Specific Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral or any Series-Specific Collateral in its possession if the Collateral or any Series-Specific Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral or any Series-Specific Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.
(i) The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or any Series-Specific Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral or any Series-Specific Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any Series-Specific Collateral or any agreement or assignment contained therein, for the validity of the title of ZVF to the Collateral or any Series-Specific Collateral, for insuring the Collateral or any Series-Specific Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or any Series-Specific Collateral or otherwise as to the maintenance of the Collateral or any Series-Specific Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of the Indenture or the Related Documents by ZVF or the Collateral Agent.
Appears in 2 contracts
Sources: Base Indenture (Zipcar Inc), Base Indenture (Zipcar Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of a Default or an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of Default shall not be required have been given to confirm the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunderor powers.
(d) Whether or not therein expressly so provided, including, without limitation, 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 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itthis Section.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 2 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of a Default or an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of Default shall not be required have been given to confirm the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such ▇▇▇▇▇▇’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunderor powers.
(d) Whether or not therein expressly so provided, including, without limitation, 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 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itthis Section.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 2 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing(which has not been cured or waived) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that the Trustee will not be responsible for the accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents or other instruments. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall take such action as it deems appropriate to have the instrument corrected. On each Distribution Date, the Trustee, shall make monthly distributions and the final distribution to the Certificateholders from funds in the Distribution Account as provided in Sections 5.01 and 10.01 herein. No provision of this 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 misconduct; provided, however, that:
(bi) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to which may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2ii) the Trustee shall not be liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent facts; andfacts related thereto;
(3iii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the consent or at the direction received by it of Holders of Certificates as provided herein relating to the time, method and place of conducting any remedy pursuant to Section 6.5.this Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee under this Agreement;
(div) Whether the Trustee shall not be responsible for any act or not therein expressly so provided, every provision omission of this Indenture that is the Servicer (except in any way related its capacity as successor servicer to the Trustee is subject to paragraphs (aextent provided in Section 7.02(a)), (b)the Depositor, (c) and (e) of this Section 7.1.the Seller or the Custodian, or any successor Custodian; and
(ev) No provision of this Indenture shall require the Trustee shall not be charged with knowledge of any Event of Default unless a Responsible Officer of the Trustee at the Corporate Trust Office obtains actual knowledge of such failure or the Trustee receives written notice at the Corporate Trust Office of such Event of Default. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, 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 of 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 the Servicing 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 the Servicing Agreement.
(b) On or prior to the Closing Date, the Trustee shall deliver to the Sponsor and the Depositor a certification in the form of Exhibit R attached hereto specifying the items it will address in its assessment of compliance with the servicing criteria under this Section 8.01. On or before March 1 of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall deliver to the Sponsor and the Depositor a report regarding its assessment of compliance with the servicing criteria that it has identified in its certification in the form of Exhibit R, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report, with respect to asset-backed security transactions taken as a whole in which the Trustee is performing any activities that address any of the servicing criteria identified by it in such certification and that are backed by the same asset type backing such asset-backed securities. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the servicing criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable servicing criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable servicing criteria, which report shall be delivered by the Trustee as provided in section 8.01(c).
(c) On or before March 1st of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall, at its own expense, cause a firm of independent public accountants (who may also render other services to Trustee), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor and the Depositor a report to the effect that such firm that attests to, and reports on, the assessment made by such asserting party pursuant to Section 8.01(b) above, which report shall be made in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board. Notwithstanding the foregoing, the Trustee may provide a copy of the above to the Depositor.
(d) The Trustee shall not appoint any Subcontractor without receiving the prior written consent of the Sponsor and the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor.
(e) The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit S. On or before March 1 of each year, the Depositor shall distribute the information on Exhibit S to the Trustee.
(f) The Trustee shall not be liable for interest on or Each of the investment parties hereto acknowledges and agrees that the purpose of any money received this Section 8.01(b)-(e) is to facilitate compliance by it except as the Trustee may agree Seller and the Depositor with the Companyprovisions of Regulation AB, as such may be amended or clarified from time to time. Money held Therefore, each of the parties agrees that the parties’ obligations hereunder will be supplemented and modified as necessary to be consistent with any such amendments, interpretive advice or guidance, convention or consensus among active participants in trust by the Trustee need not be segregated from other funds except asset-backed securities markets, advice of counsel, or otherwise in respect of the requirements of Regulation AB and the parties shall comply, to the extent required practicable from a timing and information systems perspective, with requests made by lawthe Seller or the Depositor for delivery of additional or different information as the Sponsor or the Depositor may determine in good faith is necessary to comply with the provisions of Regulation AB.
(g) The Trustee’s obligation to provide assessments of compliance and attestations under this Section 8.01 shall terminate upon the filing of a Form 15 suspension notice on behalf of the Trust Fund. Notwithstanding the foregoing, after the occurrence of such event, and provided the Depositor is not otherwise provided with such reports or copies of such reports, the Trustee shall be obligated to provide a copy of such reports, by March 15 of each year, to the Depositor.
Appears in 2 contracts
Sources: Pooling Agreement (Harborview 2006-5), Pooling Agreement (Harborview 2006-3)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every Every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (a), (b), ) and (c) and (e) of this Section 7.1Section.
(e) No provision of this Indenture shall require the The Trustee may refuse to expend perform any duty or risk its own funds exercise any right or otherwise incur power unless it receives indemnity satisfactory to it against any financial loss, liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itexpense.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 2 contracts
Sources: Indenture (Del Webb Corp), Indenture (Del Webb Corp)
Duties of the Trustee. The duties and responsibilities of the Trustee shall be as provided by the TIA and as set forth herein.
(a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into implied in this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; 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 certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Notwithstanding anything to the contrary herein contained, the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 7.1;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.2, 6.4 or 6.5 of this Indenture.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture or the Collateral Agreements 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1 and Section 7.2 of this Indenture.
(f) The Trustee shall not be liable for interest on or the investment of any money or assets received by it except as the Trustee may agree in writing with the CompanyIssuers. Money Assets held in trust by the Trustee need not be segregated from other funds assets except to the extent required by law.
Appears in 1 contract
Sources: Indenture (MSX International Inc)
Duties of the Trustee. (a) If an Amortization Event of or Servicer Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which the Trustee has not received notice; and, provided, further, that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee's negligence or willful misconduct.
(b) Except during the continuance of an Amortization Event of Default known to the Trusteeor Servicer Default:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.59.4.
(iv) The Trustee shall not be charged with knowledge of any default by the Servicer in the performance of its obligations under this Indenture, unless a Trust Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Notes evidencing not less than 10% of the aggregate principal amount of the Notes of any Series adversely affected thereby.
(d) Whether or not therein expressly so provided, every provision of Notwithstanding anything to the contrary contained in this Indenture that is in or any way related to of the Trustee is subject to paragraphs (a)Related Documents, (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. The Trustee shall not be required to perform, or be responsible for the manner of performance of the Servicer under this Indenture unless the Trustee shall be successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with terms of this Indenture or any Supplement.
(e) In the event that the Paying Agent or the Transfer Agent and Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee may allow and credit to TFFC interest agreed upon by TFFC and the Trustee from time to time as may be permitted by law.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1i) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(fe) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing(which has not been cured or waived) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that the Trustee will not be responsible for the accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents or other instruments. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall take such action as it deems appropriate to have the instrument corrected. On each Distribution Date, the Trustee, shall make monthly distributions and the final distribution to the Certificateholders from funds in the Distribution Account as provided in Sections 5.01 and 10.01 herein. No provision of this 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 misconduct; provided, however, that:
(bi) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to which may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2ii) the Trustee shall not be liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent facts; andfacts related thereto;
(3iii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the consent or at the direction received by it of Holders of Certificates as provided herein relating to the time, method and place of conducting any remedy pursuant to Section 6.5.this Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee under this Agreement;
(div) Whether the Trustee shall not be responsible for any act or not therein expressly so provided, every provision omission of this Indenture that is the Servicer (except in any way related its capacity as successor servicer to the Trustee is subject to paragraphs (aextent provided in Section 7.02(a)), (b)the Depositor, (c) and (e) of this Section 7.1.the Seller or the Custodian, or any successor Custodian; and
(ev) No provision of this Indenture shall require the Trustee shall not be charged with knowledge of any Event of Default unless a Responsible Officer of the Trustee at the Corporate Trust Office obtains actual knowledge of such failure or the Trustee receives written notice at the Corporate Trust Office of such Event of Default. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, 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 of 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 the Servicing 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 the Servicing Agreement.
(b) On or prior to the Closing Date, the Trustee shall deliver to the Sponsor and the Depositor a certification in the form of Exhibit R attached hereto specifying the items it will address in its assessment of compliance with the servicing criteria under this Section 8.01. On or before March 1 of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall deliver to the Sponsor and the Depositor a report regarding its assessment of compliance with the servicing criteria that it has identified in its certification in the form of Exhibit R, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report, with respect to asset-backed security transactions taken as a whole in which the Trustee is performing any activities that address any of the servicing criteria identified by it in such certification and that are backed by the same asset type backing such asset-backed securities. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the servicing criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (Sec. 229.1122(d)) to assess compliance with the applicable servicing criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable servicing criteria, which report shall be delivered by the Trustee as provided in section 8.01(c).
(c) On or before March 1st of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall, at its own expense, cause a firm of independent public accountants (who may also render other services to Trustee), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor and the Depositor a report to the effect that such firm that attests to, and reports on, the assessment made by such asserting party pursuant to Section 8.01(b) above, which report shall be made in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board. Notwithstanding the foregoing, the Trustee may provide a copy of the above to the Depositor.
(d) The Trustee shall not appoint any Subcontractor without receiving the prior written consent of the Sponsor and the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor.
(e) The Trustee shall notify the Depositor and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (Sec. 229.1117) of Regulation AB, (ii) of any merger, consolidation or sale of substantially all of the assets of the Trustee and (iii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit S. On or before March 1 of each year, the Depositor shall distribute the information on Exhibit S to the Trustee.
(f) The Trustee shall not be liable for interest on or Each of the investment parties hereto acknowledges and agrees that the purpose of any money received this Section 8.01(b)-(e) is to facilitate compliance by it except as the Trustee may agree Seller and the Depositor with the Companyprovisions of Regulation AB, as such may be amended or clarified from time to time. Money held Therefore, each of the parties agrees that the parties’ obligations hereunder will be supplemented and modified as necessary to be consistent with any such amendments, interpretive advice or guidance, convention or consensus among active participants in trust by the Trustee need not be segregated from other funds except asset-backed securities markets, advice of counsel, or otherwise in respect of the requirements of Regulation AB and the parties shall comply, to the extent required practicable from a timing and information systems perspective, with requests made by lawthe Seller or the Depositor for delivery of additional or different information as the Sponsor or the Depositor may determine in good faith is necessary to comply with the provisions of Regulation AB.
(g) The Trustee’s obligation to provide assessments of compliance and attestations under this Section 8.01 shall terminate upon the filing of a Form 15 suspension notice on behalf of the Trust Fund. Notwithstanding the foregoing, after the occurrence of such event, and provided the Depositor is not otherwise provided with such reports or copies of such reports, the Trustee shall be obligated to provide a copy of such reports, by March 15 of each year, to the Depositor.
Appears in 1 contract
Sources: Pooling Agreement (Harborview Mortgage Loan Trust 2006-1)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations or other facts stated therein)calculations.
b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice in accordance with Section 106 of such Event of Default or failure to make such payment shall have been given to the Trustee by the Company, any other obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. The Trustee shall not be deemed to have knowledge of, or be required to act (including the sending of any notice) based on, any event unless a Responsible Officer of the Trustee receives written notice of such an event or has obtained actual knowledge of such an event.
c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.;
(f5) The the permissive right of the Trustee to take any action enumerated in this Indenture shall not be liable for interest on or the investment of any money received by it except construed as a duty; and
(6) under no circumstances shall the Trustee may agree with be liable in its individual capacity for the Company. Money held in trust obligations evidenced by the Trustee need Notes.
d) Whether or not be segregated from other funds except therein expressly so provided, every provision of this Indenture relating to the extent required by lawconduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Appears in 1 contract
Sources: Indenture (HomeStreet, Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the accuracy of contents thereof including, any mathematical calculations or other facts stated therein).
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other obligor of the Notes or by Holders of at least 30% of the aggregate principal amount of the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectAgent, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1Section.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if vested in it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itby this Indenture.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However; provided, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trusteehowever, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.07.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs clauses (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to this Section 10.01.
(H) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect Other than while acting in its capacity as Successor Servicer, the Trustee, prior to the Notes known to occurrence of a Trust Officer Servicer Default of which a Responsible Official of the Trustee has actual knowledge and after the curing of all Servicer Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied duties or covenants shall be read into this Agreement against the Trustee. If a Responsible Official of the Trustee has actual knowledge that a Servicer Default has occurred and is continuing(which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement and use the same degree of care and skill in their exercise exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the The Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 receipt of any resolutions, certificates, statements, certificates opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement or any Supplement, the Trustee shall examine the certificates and opinions them to determine whether or not they substantially conform to the requirements of this Indenture (but Agreement or any Supplement. The Trustee shall not be required give prompt written notice to confirm the Transferor, the Holders, any Enhancement Provider and each Rating Agency of any material lack of conformity of any such instrument to the applicable requirements of this Agreement or investigate any Supplement discovered by the accuracy Trustee which would entitle any Enhancement Provider or a specified percentage of mathematical calculations the Investor Certificateholders to take any action pursuant to this Agreement or other facts stated therein)any Supplement.
(c) The Subject to Section 11.01(a), no provision of this Agreement shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct; provided, except however, that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2i) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Officer or any other officer Responsible Official of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3ii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of a direction received Majority in Interest of each outstanding Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee in accordance with the terms of this Agreement, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any failure by it pursuant the Servicer to comply with the obligations of the Servicer referred to in Section 6.510.01 or of any Early Amortization Event unless a Responsible Official of the Trustee obtains actual knowledge of such failure or such event or the Trustee receives written notice of such failure or such event from the Servicer, each Enhancement Provider or the Holders of any outstanding Series evidencing not less than 20% of the Invested Amount for such Series.
(d) Whether or The Trustee shall not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or under any Supplement or in the exercise of any of its rights and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have there is reasonable grounds for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk of 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 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.
(e) Except for actions expressly authorized by this Agreement, the Trustee shall take no action reasonably likely to impair the interests of the Trust in any Receivable now existing or hereafter created or to impair the value of any Receivable now existing or hereafter created.
(f) Except as expressly provided in this Agreement, the Trustee shall have no power to vary the corpus of the Trust including by (i) accepting any substitute obligation for a Receivable initially Transferred to the Trust under Section 2.01, (ii) adding any other investment, obligation or security to the Trust or (iii) withdrawing from the Trust any Receivable.
(g) In the event that the Transfer Agent and Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Transfer Agent and Registrar, as the case may be, under this Agreement or under any Supplement, the Trustee shall be obligated promptly upon its actual knowledge thereof to perform such obligation, duty or agreement in the manner so required.
(h) The Trustee shall have no responsibility or liability for the selection of, or investment losses on, Eligible Investments.
(i) Notwithstanding any other provision contained herein, the Trustee is not acting as, and shall not be liable deemed to be, a fiduciary for interest on any Enhancement Provider in its capacity as such or as a Beneficiary, and the investment Trustee's sole responsibility with respect to any such Enhancement Provider shall be to perform those duties with respect to any such Enhancement Provider as are specifically set forth herein, and no implied duties or obligations shall be read into this Agreement against the Trustee with respect to any such Enhancement Provider.
(j) The Trustee shall notify each Rating Agency and each Enhancement Provider (i) of any money received by it except as notice which the Trustee receives pursuant to Section 2.05(f)(i), 2.05(g) or 3.04(h)(i), (ii) of any change in any rating of the Certificates of any other Rating Agency and (iii) immediately of the occurrence of any Early Amortization Event under Article IX.
(k) The Trustee shall, with respect to each Daily Report (upon which the Trustee may agree conclusively rely), (A) compare the Collections reported that day by the Servicer to the actual Collections deposited to the Collection Account, (B) with respect to the Company. Money held reconciliation of each of the trust accounts, compare the beginning balance as reported by the Servicer to the amount on deposit in the trust accounts per the accounting records of the Trustee and (C) perform each of the account transfers set forth in the Daily Report, as directed by the Servicer.
(l) The Trustee shall follow the following procedures with respect to each Determination Date Certificate (upon which the Trustee may conclusively rely):
(i) with respect to the reconciliation of each of the trust accounts, compare the beginning and ending balances to the amounts which were on deposit in the trust accounts per the accounting records of the Trustee as of the applicable date; and
(ii) examine potential Early Amortization Events for positive indications of actual Early Amortization Events pursuant to any such requirement in any applicable Supplement.
(m) Notwithstanding any other provision of this Agreement or any Supplement, upon discovery by the Trustee need not of any material discrepancy between the amounts reported by the Servicer and the amounts calculated as provided above, the Trustee shall promptly notify the Servicer thereof and the Servicer shall thereupon have ten days to resolve such discrepancy before the Trustee shall be segregated from other funds except obligated to give notice to the extent required by lawHolders, each Enhancement Provider and each Rating Agency.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Zenith Electronics Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(b) Subject to the protections of Article Six and Article Fifteen hereof (including, but not limited to, the provision of indemnity or security as set forth in Section 603(5)), if an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee or the Collateral Agent, as applicable, has actual knowledge or of which written notice of such Event of Default or failure to make such payment shall not be required have been given to confirm the Trustee and the Collateral Agent, as applicable, by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee or the Collateral Agent, as applicable, shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and the Trustee shall use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant to Section 6.5.of the requisite Holders or Secured Parties as set forth in this Indenture or the applicable Security Document;
(d4) Whether the Trustee will be under no obligation to exercise any of its rights and powers under this Indenture or not therein expressly so providedthe Security Documents unless the Trustee has been offered security or indemnity reasonably satisfactory to it against any loss, every liability or exposure; and
(5) no provision of this Indenture that is in any way related or the Security Documents shall be deemed to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The Whether or not therein expressly so provided, every provision of this Indenture and the Security Documents relating to the conduct or affecting the liability of or affording protection to the Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 6.01 and Section 6.03.
Appears in 1 contract
Sources: Indenture (Aleris Corp)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders and the Certificate Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions 102 108 expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates aggregating not less than 51% relating to Section 6.5.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 Agreement provided that such action has been approved by the Certificate Insurer; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Certificate Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful wilful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (ec) of this Section 7.17.01.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Amkor Technology Inc)
Duties of the Trustee. (a) If an Amortization Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Responsible Officer has not received written notice; and provided further that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Event of Default known to the TrusteeAmortization Event:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.59.3.
(iv) The Trustee shall not be charged with knowledge of any Amortization Event, Custody Revocation Trigger Event, Limited Liquidation Event of Default, Liquidation Event of Default, any default by the Lessor, ARG, the Servicer, any Lessee or other Person in the performance of its obligations under any Related Document or any other event described in Section 8.10(a), unless a Responsible Officer of the Trustee receives written notice of such failure from the Servicer, any Lessee or any Holders of Notes evidencing not less than 10% of the aggregate principal amount of the Notes of any Series adversely affected thereby or otherwise has actual knowledge thereof.
(d) Whether or not therein expressly so provided, every provision of Notwithstanding anything to the contrary contained in this Indenture that is in or any way related to of the Trustee is subject to paragraphs (a)Related Documents, (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability if there is reasonable ground (as determined by the Trustee in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Responsible Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by law or the Related Documents. The Trustee may allow and credit to the Issuer interest agreed upon by the Issuer and the Trustee from time to time as may be permitted by law.
(g) In the event that each person acting as Independent Director (as defined in the GP Limited Liability Company Agreement) shall resign or refuse to be admitted to the General Partner as the Special Member (as defined in the GP Limited Liability Company Agreement) under the circumstances contemplated by Section 5(c) of the GP Limited Liability Company Agreement, the Trustee shall appoint a person meeting the requirements of an Independent Director to act as the Special Member in accordance with Section 5(c) of the GP Limited Liability Company Agreement. If the Trustee fails to so appoint a person to act as the Special Member within thirty (30) days of the occurrence of the event that caused Vanguard to cease to be a member of the General Partner, the Trustee shall provide written notice of such event to the Noteholders, and the Requisite Noteholders shall have the right to select a person for the Trustee to appoint to act as the Special Member of the General Partner. The General Partner shall provide prompt written notice to the Trustee of any event that causes Vanguard to cease to be a member of the General Partner.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act gross negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06 or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Notes.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Companyit. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Unless a Responsible Officer of the Trustee has received notice from the Company that Additional Interest is owing on the Notes or that the Company has elected to pay Special Interest on the Notes, the Trustee may assume no Additional Interest or Special Interest, as applicable, is payable.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer by the Issuer, any other obligor of the Notes or investigate by Holders of at least 25% of the accuracy aggregate principal amount of mathematical calculations the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does clause (c) shall not be construed to limit the effect of paragraph clause (b) or paragraph (ea) of this SectionSection 601;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1601 and to the provisions of the TIA.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (BWX Technologies, Inc.)
Duties of the Trustee. (a) If In case an Event of Default with respect to the Notes known to or a Trust Officer Rapid Amortization Event of which the Trustee shall have Actual Knowledge has occurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such direction and act or refrain from acting in accordance therewith) exercise such of the rights and powers vested in it by this Base Indenture and the other Transaction Documents, and use the same degree of care and skill in their exercise its exercise, as a prudent person Person would exercise or use under the circumstances in the conduct of his or her such Person’s own affairs; provided that the Trustee will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; provided, further, that the Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party, Controlling Class Representative or the requisite percentage of the Controlling Class Members or noteholders, as applicable, in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or Controlling Class Representative. No provision of the Base Indenture may be construed to relieve the Trustee from liability for its own negligence, fraud, bad faith or willful misconduct, except that (i) this provision may not be construed to limit the effect of the immediately preceding sentence; (ii) the Trustee will not be liable in its individual capacity for any error of judgment made in good faith by a Trust Officer, unless it is proven that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee will not be liable in its individual capacity with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Control Party or the requisite Noteholders in accordance with the Base Indenture relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under the Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture; (iv) no provision of the Base Indenture or any other Transaction Documents will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or exercise of its rights or powers thereunder, if it has reasonable grounds for believing that repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it (such reasonableness to be determined pursuant to the Base Indenture); and (v) the Trustee will not be liable to the Noteholders for any action taken or omitted by it in good faith at the direction of the Manager, the Co-Issuers, the Control Party and/or any Noteholder under the circumstances if such direction is required or permitted by the terms of the Base Indenture.
(b) Except during the occurrence and continuance of an Event of Default known to or a Rapid Amortization Event of which the TrusteeTrustee shall have Actual Knowledge:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any other Transaction Documents to which it is a party, and no other duties or implied covenants or obligations shall be read into this the Indenture or any other Transaction Document against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Indenture and any other applicable Transaction Document; provided 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 such certificates and or opinions to determine whether or not they conform to the requirements of this the Indenture (but and shall not be required to confirm or investigate promptly notify the accuracy party of mathematical calculations or other facts stated therein)any non-conformity.
(c) The Trustee may not be relieved from liability for its own negligent actionnegligence, its own negligent failure to act fraud, bad faith or its own willful misconduct, except that:
(1i) this paragraph This clause (c) does not limit the effect of paragraph clause (b) or paragraph (ea) of this Section;Section 10.1.
(2ii) the The Trustee shall not be liable in its individual capacity for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable in its individual capacity with respect to any action it takes takes, suffers or omits to take in good faith in accordance at the direction of the Manager, the Co-Issuers, the Control Party and/or any Noteholder under the circumstances if such direction is required or permitted by the terms hereunder.
(iv) The Trustee shall not be charged with knowledge of any Mortgage Recordation Event, Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Warm Back-Up Management Trigger Event or Servicer Termination Event or the commencement and continuation of a direction Cash Flow Sweeping Period (prior to the Springing Amendments Implementation Date) or a Cash Trapping Period (on and after the Springing Amendments Implementation Date) until such time as a Trust Officer shall have Actual Knowledge or have received by it pursuant to Section 6.5written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee may conclusively assume that no such event has occurred or is continuing.
(d) Whether Notwithstanding anything to the contrary contained in the Indenture or not therein expressly so providedany of the other Transaction Documents, every no provision of this the Indenture that is in any way related to or the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture other Transaction Documents 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 or the exercise of any of its rights and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have has reasonable grounds for believing that repayment of such funds or adequate security or indemnity against such risk of or liability is not reasonably assured to itit by the security afforded to it by the terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e) In the event that the Paying Agent or the Note Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Note Registrar, as the case may be, under the Indenture, the Trustee shall be obligated as soon as practicable upon Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 10.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by lawlaw or the Indenture or any of the other Transaction Documents.
(g) Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h) The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of the Indenture or the other Transaction Documents by the Securitization Entities.
(i) The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture or at the direction of the Servicer, the Control Party, the Controlling Class Representative or the holders of the requisite percentage of Noteholders, relating to the time, method and place for conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture.
(j) The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture 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 recordings or filing or depositing or to any rerecording, refiling or redeposition of any thereof (other than with respect to filings of the Mortgages as and to the extent provided in Section 3.1(c)); (ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k) The Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the performance of its duties under the Indenture.
(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.14(a) hereof; provided that notwithstanding anything herein or in any other Transaction Document to the contrary, the Trustee shall not be obligated to advance any principal on the Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amount, any Post-ARD Additional Interest, any amounts required to be deposited to the Hedge Payment Account or any reserve amounts or any interest payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes. In addition, for the avoidance of doubt, the Trustee shall not be required to make any Debt Service Advance in respect of any Class A-1 Interest Adjustment Amount to the extent such Debt Service Advance would be duplicative of a Debt Service Advance already made with respect to such Quarterly Calculation Date. To the extent an Alternative Advance Funding Facility is in effect, the Trustee shall not be required to make Advances to the extent (a) the provider thereunder has determined that such Advance is a Nonrecoverable Advance, (b) such Alternative Advance Funding Facility has been terminated, or (c) there are no amounts available thereunder.
(ii) Notwithstanding anything herein to the contrary, no Debt Service Advance shall be required to be made hereunder by the Trustee if the Trustee determines such Debt Service Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance. The determination by the Trustee that it has made a Nonrecoverable Advance or that any proposed Debt Service Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Debt Service Advance or Collateral Protection Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Debt Service Advances and Collateral Protection Advances made by the Trustee and any accrued interest thereon shall be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall be entitled to receive interest at the Advance Interest Rate accrued on the amount of each Debt Service Advance made thereby (with its own funds) for so long as such Debt Service Advance is outstanding. Such interest with respect to any Debt Service Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in accordance with the Priority of Payments pursuant to Section 5.13 hereof and the other applicable provisions of the Transaction Documents. Such interest will be calculated on the basis of a 360-day year of twelve 30-day months and will be due and payable in arrears on each Weekly Allocation Date.
(iv) On and after the Advance Funding Effective Date, Advances shall be limited to amounts held in the Advance Funding Reserve Account and amounts available for such purpose under the Alternative Advance Funding Facility. In no event will the Servicer (to the extent it remains in any capacity in the Securitization Transactions) or the Trustee be required to make any Advances of any nature whatsoever if the Advance Funding Provider does not provide the funds available therefor.
Appears in 1 contract
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and, if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to the provisions of this Section.
(H) The Trustee will not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the Notes.
(I) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
(J) Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
Appears in 1 contract
Sources: Indenture (Booking Holdings Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 7.1;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Agere Systems Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1) The the duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 7.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.6.05; and
(d4) Whether or not therein expressly so provided, every provision none of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial liability or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity reasonably satisfactory to it against such risk of or liability is not reasonably assured to it.
(fd) The Trustee shall not will be liable for interest on under no obligation to exercise any of the rights or powers under this Indenture, the investment Notes and the Note Guarantees at the request or direction of any money received of the Holders unless such Holders have provided to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses, fees and liabilities which might be incurred by it except as in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except is subject to the extent required by lawthis Section 7.01.
Appears in 1 contract
Sources: Indenture (UWM Holdings Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice in accordance with Section 106 of such Event of Default shall have been given to the Trustee by the Company, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. The Trustee shall not be deemed to have knowledge of, or be required to act (including the sending of any notice) based on, any event unless a Responsible Officer of the Trustee receives written notice of such an event or has obtained actual knowledge of such an event.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity or security against such risk of or liability is not reasonably assured to it;
(5) the permissive right of the Trustee to take any action enumerated in this Indenture shall not be construed as a duty; and
(6) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; except that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement provided that such action has been approved by the Certificate Insurer; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.8.01 unless a Responsible Officer obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Certificate Insurer, as the case may be; and
(e) No provision of this Indenture shall require the Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, and a Responsible Officer of the Trustee shall has written notice or actual knowledge of the same, then, without limiting the generality of Section 10.02(F), the Trustee will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith gross negligence or willful misconduct on its part, the Trustee may may, without investigation, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished that are provided to the Trustee and conforming conform to the requirements of this Indenture. However; provided, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trusteehowever, that the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act gross negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.07.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(eD) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fE) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(F) The Trustee will not be liable in its individual capacity for the obligations evidenced by the Notes.
(G) Each provision of this Indenture that in any way relates to the Trustee (including any provision that affects the liability of, or affords protection to, the Trustee) is subject to this Section 10.01, regardless of whether such provision so expressly provides.
Appears in 1 contract
Sources: Indenture (Green Plains Inc.)
Duties of the Trustee. (a) If an Amortization Event of Default with respect to the Notes known to has occurred and is continuing and a Trust Officer of the Trustee has occurred and is continuingreceived written notice thereof or has actual knowledge and, in the case of an Amortization Event described in Section 8.1(ii), written confirmation thereof (which confirmation the Trustee shall use its best efforts to obtain as soon as practicable upon written request by any Noteholder), the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs; provided, however, that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Trust Officer has not received notice or obtained actual knowledge; provided, further, however, that the preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an Amortization Event of Default known to which the TrusteeTrustee has actual knowledge:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 9.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.58.6.
(iv) The Trustee shall not be charged with knowledge of any default by the Servicer in the performance of its obligations under this Indenture, the Lease or the Master Collateral Agency Agreement unless a Trust Officer has actual knowledge thereof.
(d) Whether or not therein expressly so provided, every provision of Notwithstanding anything to the contrary contained in this Indenture that is in or any way related to of the Trustee is subject to paragraphs (a)Related Documents, (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability if there is reasonable ground (as determined by the Trustee in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds sole discretion) for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of this Indenture. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. The Trustee shall not be required to perform the obligations of, to monitor or to be responsible for the manner of performance of the Servicer under this Indenture unless the Trustee shall be successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with terms of this Indenture or any Related Document, in which case it shall not incur any liability for acts or omissions of the prior Servicer.
(e) In the event that the Paying Agent or Registrar is other than the Trustee, and the Paying Agent or Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and in each case, subject to the Trustee's prior receipt of all information, documents and funds, if any, necessary to perform such function, undertake such obligation, duty or agreement in the manner so required.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 9.3, all moneys received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee may allow and credit to Thrifty Finance interest agreed upon by Thrifty Finance and the Trustee from time to time as may be permitted by law.
Appears in 1 contract
Sources: Base Indenture (Dollar Thrifty Automotive Group Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer by the Issuer, any other obligor of the Notes or investigate by Holders of at least 30% of the accuracy aggregate principal amount of mathematical calculations the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1601 and to the provisions of the TIA.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Engility Holdings, Inc.)
Duties of the Trustee. (a) If The Trustee, prior to the occurrence of an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee has occurred actual knowledge and is continuingafter the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no permissive right of the Trustee shall be construed as a duty. During the continuance of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge, the Trustee Trustee, subject to the provisions of Section 7.02 and Section 7.04 of this Agreement, shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(b) Except during The Trustee, upon receipt of any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the continuance Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement to the extent specifically set forth herein; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument provided to it hereunder if accepted in good faith. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, the Trustee shall request a corrected instrument, and if the instrument is not corrected to the Trustee’s reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders.
(c) Neither the Trustee nor any of its respective officers, directors, employees, agents or “control” persons within the meaning of the Act shall have any liability arising out of or in connection with this Agreement, provided that, subject to Section 8.02 of this Agreement, no provision of this Agreement shall be construed to relieve the Trustee or any such person, from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or its own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default known to or Operating Advisor Termination Event of which a Responsible Officer of the Trustee:
(1) The Trustee has actual knowledge, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any resolutions, certificates, statements, certificates reports, opinions, documents, orders or opinions other instruments furnished to the Trustee and conforming that conform on their face to the requirements of this Indenture. However, in Agreement without responsibility for investigating the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Sectioncontents thereof;
(2ii) the The Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officers, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of Holders of Certificates entitled to Section 6.5.
greater than 50% of the Percentage Interests (dor such other percentage as is specified herein) Whether of each affected Class, or not therein expressly so providedof the aggregate Voting Rights of the Certificates, every provision relating to the time, method and place of this Indenture that is in conducting any way related proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee under this Agreement;
(iv) Neither the Trustee nor any of its respective directors, officers, employees, agents or control persons shall be responsible for any act or omission of any Custodian, Paying Agent or Certificate Registrar that is subject not an Affiliate of the Trustee and that is selected other than by the Trustee, performed or omitted in compliance with any custodial or other agreement, or any act or omission of the Master Servicer, Special Servicer, the Depositor, the Operating Advisor or any other third Person, including, without limitation, in connection with actions taken pursuant to paragraphs this Agreement;
(a)v) The Trustee shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its respective duties as Trustee in accordance with this Agreement (b)and, (cif it does, all reasonable legal expenses and costs of such action shall be expenses and costs of the Trust Fund) and (e) in its opinion does not expose it to any expense or liability for which reimbursement is not reasonably assured, and the Trustee shall be entitled to be reimbursed therefor from the Collection Account, unless such legal action arises out of the negligence or bad faith of the Trustee or any breach of an obligation, representation, warranty or covenant of the Trustee contained herein; provided, however, that the Trustee may in its discretion undertake any such action related to its obligations hereunder which it may deem necessary or desirable with respect to this Section 7.1.Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder; and
(evi) No provision The Trustee shall not be charged with knowledge of any act, failure to act or breach of any Person upon the occurrence of which the Trustee may be required to act, unless a Responsible Officer of the Trustee obtains actual knowledge of such failure. The Trustee shall be deemed to have actual knowledge of the Master Servicer’s or the Special Servicer’s failure to provide scheduled reports, certificates and statements when and as required to be delivered to the Trustee pursuant to this Indenture Agreement. None of the provisions contained in this Agreement shall require the Trustee Trustee, in its capacity as Trustee, to expend or risk its own funds 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that in the opinion of the Trustee the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) , 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, the Special Servicer or the Operating Advisor under this Agreement, except, with respect to the Trustee, 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 or the Special Servicer in accordance with the terms of this Agreement. The Trustee shall not be required to post any surety or bond of any kind in connection with its performance of its obligations under this Agreement and the Trustee shall not be liable for interest any loss on or the any investment of funds pursuant to this Agreement (other than any money received by funds invested with it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by lawits commercial capacity).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to of which a Responsible Officer of the TrusteeTrustee has Actual Knowledge:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; 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 certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default actually known to the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph does subsection shall not be construed to limit the effect of paragraph (b) or paragraph (e) of this SectionSection 8.1(a);
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a the written direction received of the Required Holders under, or believed by it pursuant to Section 6.5.be authorized or permitted by, this Indenture, and shall not be liable for accepting, or acting upon, any decision made by the holders in accordance herewith; and
(div) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity and/or security against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 8.1.
Appears in 1 contract
Sources: Indenture (Auna S.A.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairsReserved.
(b) Except during the continuance of an Event of Default known The Trustee undertakes to the Trustee:
(1) The perform such duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those such duties that as are specifically set forth in this Indenture Agreement and no others, shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee and its directors, officers, employees and agents may not be relieved protected from liability for its own negligent actionwhich would otherwise be imposed by reason of willful misfeasance, its own negligent failure to act bad faith or its own willful misconductgross negligence in the performance of their respective duties or by reason of reckless disregard of obligations and duties under this Agreement, except that:
(1i) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;; and
(2ii) the Trustee shall not be liable for any error of judgment made action taken, or not taken, by the Trustee in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5this Agreement or for errors in judgment.
(d) Whether or not therein expressly so provided, every Every provision of this Indenture that is in any way related Agreement shall be subject to the Trustee is subject to paragraphs (a), (b), (c) and (e) provisions of this Section 7.1and Section 8.02.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for indebtedness evidenced by or arising under this Agreement, including principal of or interest on the Q-REMIC Interests, or the investment of interest on any money received by it except as the Trustee may agree with the Company. in writing.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by lawlaw or the terms of this Agreement.
(g) No provision of this Agreement shall require the Trustee to expend, advance or risk its own funds or otherwise incur 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 to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(h) The Trustee, or the Administrator on its behalf, may, but shall not be obligated to, undertake any legal action that it deems necessary or desirable in the interest of Holders. The Trustee, or the Administrator on its behalf, may be reimbursed for the legal expenses and costs of such action from the assets of the related Trust Fund.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect The Trustee undertakes to the Notes known to a Trust Officer of the Trustee has occurred perform such duties and is continuing, the Trustee shall exercise only such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise duties as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no othersAgreement, and no implied duties or covenants or obligations shall be read into this Indenture Agreement against the Trustee; and.
(2b) 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 thereinThe Trustee, upon receipt of any resolutions, certificates, statements, certificates opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement, the Trustee shall examine the certificates and opinions them to determine whether or not they substantially conform to the requirements of this Indenture (but Agreement. The Trustee shall not be required give prompt written notice to confirm or investigate the accuracy Seller and the Agent of mathematical calculations or other facts stated therein)any material lack of conformity of any such instrument to the applicable requirements of this Agreement discovered by the Trustee.
(c) The Subject to Section 11.01 (a), no provision of this Agreement shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct; provided, except however, that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2i) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Officer or any other officer Responsible Official of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3ii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Agent relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee in accordance with the terms of this Agreement, or exercising any trust or power conferred upon the Trustee under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any failure by the Collection Agent to comply with any obligations of the Collection Agent contained herein or of any Event of Termination unless a direction received by it pursuant to Section 6.5Responsible Official of the Trustee obtains actual knowledge of such failure or such event or the Trustee receives written notice of such failure or such event from the Collection Agent, the Agent, any Owner or any Bank.
(d) Whether or The Trustee shall not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee be required 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have there are reasonable grounds for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk of or liability is not reasonably assured to itit 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 obligations of the Collection Agent under this Agreement.
(e) Except for actions expressly authorized by this Agreement, the Trustee shall take no action reasonably likely to impair the interests of the Agent (for the benefit of the Owners) in any Receivable now existing or hereafter created or impair the value of any Receivable now existing or hereafter created.
(f) The Trustee shall not be liable have no responsibility or liability for interest on the selection of, or investment losses on, Available Investments. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the party to provide timely written investment of any money received by it except as direction.
(g) The Trustee shall, with respect to each Daily Report (upon which the Trustee may agree with conclusively rely and be fully protected in acting or re g from acting in such reliance), (A) compare the Company. Money held in trust Collections reported that day by the Trustee need not be segregated from other funds except Collection Agent to the extent required actual Collections deposited to the Lock Box Accounts and the Concentration Account, (B) perform each of the account transfers set forth in the Daily Report as directed in writing by lawthe Collection Agent;
(h) The Trustee shall with respect to each Purchaser Report (upon which the Trustee may conclusively rely and be fully protected in acting or refraining from acting in such reliance) examine such Purchaser Report for indications of the occurrence of any Events of Termination arising from under clause (h) of Section 7.01.
(i) Notwithstanding any other provision of this Agreement, upon discovery by a Responsible Official of Trustee of any material discrepancy between the amounts reported by the Collection Agent and the amounts calculated as provided above, the Trustee shall promptly notify the Collection Agent and the Agent thereof.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Maxtor Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (ec) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Leasing Solutions Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of a Default or an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall not be required to verify the contents or confirm or investigate the accuracy of mathematical calculations calculations) thereof.
(b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of Default shall have been given to the Trustee by the Company, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing(which has not been cured or waived) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that the Trustee will not be responsible for the accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents or other instruments. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall take such action as it deems appropriate to have the instrument corrected. On each Distribution Date, the Trustee, shall make monthly distributions and the final distribution to the Certificateholders from funds in the Distribution Account as provided in Sections 5.01 and 10.01 herein. No provision of this 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 misconduct; provided, however, that:
(bi) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to which may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2ii) the Trustee shall not be liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent facts; andfacts related thereto;
(3iii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the consent or at the direction received by it pursuant of Holders of Certificates as provided herein relating to Section 6.5.
(d) Whether or not therein expressly so providedthe time, every provision method and place of this Indenture that is in conducting any way related remedy available to the Trustee is subject pursuant to paragraphs this Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee under this Agreement;
(aiv) the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.20(a)), (b)the Depositor, (c) and (e) of this Section 7.1.the Seller or the Custodian, or any successor Custodian; and
(ev) No provision of this Indenture shall require the Trustee shall not be charged with knowledge of any Event of Default unless a Responsible Officer of the Trustee at the Corporate Trust Office obtains actual knowledge of such failure or the Trustee receives written notice at the Corporate Trust Office of such Event of Default. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, 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 of 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 the Servicing 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 the Servicing Agreement.
(fb) On or prior to the Closing Date, the Trustee shall deliver to the Sponsor and the Depositor a certification in the form of Exhibit R attached hereto specifying the items it will address in its assessment of compliance with the servicing criteria under this Section 8.01. On or before March 1 of each calendar year, beginning with March 1, 2007, the Trustee shall deliver to the Sponsor and the Depositor a report regarding its assessment of compliance with the servicing criteria that it has identified in its certification in the form of Exhibit H, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report, with respect to asset-backed security transactions taken as a whole in which the Trustee is performing any activities that address any of the servicing criteria identified by it in such certification and that are backed by the same asset type backing such asset-backed securities. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the servicing criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable servicing criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable servicing criteria, which report shall be delivered by the Trustee as provided in Section 8.01(c). In addition, on or before March 1st of each calendar year, beginning with March 1, 2007, the Trustee shall, at its own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance of any Subservicer or Subcontractor with respect to the Trustee.
(c) On or before March 1st of each calendar year, beginning with March 1, 2007, the Trustee shall, at its own expense, cause a firm of independent public accountants (who may also render other services to Trustee), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor and the Depositor a report to the effect that such firm that attests to, and reports on, the assessment made by such asserting party pursuant to Section 8.01(b) above, which report shall be made in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board. In addition, on or before March 1st of each calendar year, beginning with March 1, 2007, the Trustee shall, at its own expense, furnish or cause to be furnished to the Sponsor and the Depositor an attestation of any Subservicer or Subcontractor with respect to the Trustee.
(d) The Trustee shall not be liable for interest on or give prior written notice to the investment Sponsor and the Depositor of the appointment of any money received Subcontractor by it except as and a written description (in form and substance reasonably satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance provided by each such Subcontractor.
(e) The Trustee shall notify the Depositor and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee may agree with of the Company. Money held type described in trust by Item 1117 (§ 229.1117) of Regulation AB, (ii) of any merger, consolidation or sale of substantially all of the assets of the Trustee need not be segregated from other funds except and (iii) if the Trustee shall become (but only to the extent required not previously disclosed) at any time an affiliate of any of the Sponsor, the Trustee, the Servicer, the Originator contemplated by lawItem 1110 (§ 229.1110) of Regulation AB, any significant obligor contemplated by Item 1112 (§ 229.1112) of Regulation AB, any enhancement or support provider contemplated by Items 1114 or 1115 (§§ 229.1114-1115) of Regulation AB or any successor thereto or any other material party to the Trust Fund contemplated by Item 1100(d)(1) (§ 229.1100(d)(1)) of Regulation AB, as applicable.
Appears in 1 contract
Sources: Pooling Agreement (Harborview Mortgage Loan Trust 2006-Cb1)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of a Default or an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall not be required to verify the contents or confirm or investigate the accuracy of mathematical calculations calculations) thereof.
(b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of Default shall have been given to the Trustee by the Issuers, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (TRAC Intermodal LLC)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; 107 113 Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or he Financial Guaranty Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 thereintherein and as to due execution, validity and effectiveness, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer of the Trustee by the Issuer, any other obligor of the Notes or investigate by Holders of at least 30% of the accuracy aggregate principal amount of mathematical calculations the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such P▇▇▇▇▇’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does clause (c) shall not be construed to limit the effect of paragraph clause (b) or paragraph (ea) of this SectionSection 601;
(2) the Trustee shall not be liable for any action taken, or error of judgment made made, in good faith by a Trust Officer any of its Responsible Officers, employees or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectagents, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1601.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Aar Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer by the Issuer, any other obligor of the Notes or investigate by Holders of at least 25% of the accuracy aggregate principal amount of mathematical calculations the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1601 and to the provisions of the TIA.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (BWX Technologies, Inc.)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51%, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform such duties and only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform on their face to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) In case an Event of Default has occurred and is continuing, the Trustee shall not be required to confirm exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or investigate use under the accuracy circumstances in the conduct of mathematical calculations his or other facts stated therein)her own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.the terms of this Indenture; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunderor powers.
(d) Whether or not therein expressly so provided, including, without limitation, 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 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itthis Section.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Winnebago Industries Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith faith, negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Affinia Group Intermediate Holdings Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person Person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, 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.
(e) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (ed) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee 7.01 and to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itthe TIA.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds or assets except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Gencorp Inc)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.07.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(eE) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itliability.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to this Section 10.01.
(H) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
Appears in 1 contract
Sources: Indenture (Cytokinetics Inc)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to a Trust Officer of the Trustee:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, 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 certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1i) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (ec) of this Section 7.17.01.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Western Wireless Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the accuracy of contents thereof including, any mathematical calculations or other facts stated therein).
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other obligor of the Notes or by Holders of at least 25% of the aggregate principal amount of the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Persons own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectAgent, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1Section.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if vested in it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itby this Indenture.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Amkor Technology, Inc.)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the 92 98 Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51%, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders. 103 109 No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or he Financial Guaranty Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Companyrights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.104 110
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If In the event an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(ba) Except during Prior to the continuance occurrence of an Event of Default known to and after the Trusteecuring or waiving of all Events of Default that may have occurred:
(1i) The the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith gross negligence and willful misconduct on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However; but, in the case of any such certificates or opinions which that by any provision provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(cb) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2i) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer Officers of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3ii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of not less than a direction received by it pursuant majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to Section 6.5.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; and
(diii) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fc) The Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section and Section 7.02.
Appears in 1 contract
Sources: Indenture (Avalara, Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations 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 other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (SemGroup Corp)
Duties of the Trustee. (a) If The duties, responsibilities and liabilities of the Trustee in respect of the Financing Documents and the other duties and liabilities of the Trustee under this Indenture shall be as follows:
(i) The Trustee (and the Servicer on its behalf) shall have the full power and authority to do all things not inconsistent with the provisions of this Indenture or any other Financing Document that it may deem advisable in order to enforce the provisions hereof or thereof or to take any action with respect to a default or an Event of Default hereunder or thereunder, or to institute, appear in or defend any suit or other proceeding with respect hereto or thereto, or to protect the interests of the Holders; provided, however, that notwithstanding the foregoing or any other provisions of this Indenture to the contrary, the Notes shall be serviced by the Servicer and the powers vested in the Servicer hereunder shall not be exercised by the Trustee except as expressly set forth herein. Neither the Trustee nor any of its directors, officers, shareholders, agents or employees (each, a “Trustee Indemnified Party” and, collectively, the “Trustee Indemnified Parties”) shall be answerable to or accountable for, except for its or their own bad faith, willful misconduct or negligence, and the Issuers agree to indemnify and save harmless the Trustee Indemnified Parties from, any costs, expenses, liabilities and damages that any of them may incur or sustain, in good faith and without willful misconduct or negligence, in the exercise and performance of the Trustee’s powers and duties hereunder and the acceptance or administration of the trust or trusts hereunder, under the Indenture or under any other Financing Document, including the cost and expense of defending themselves against any claim or liability in connection with the exercise or performance thereof; provided, however, that if it is found that any such claim or liability has resulted from the bad faith, willful misconduct or negligence of any Trustee Indemnified Party in the performance of its duties hereunder, such Trustee Indemnified Party shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to that portion of its acts or omissions that is the subject of such finding. If any Trustee Indemnified Party is entitled to receive indemnification hereunder with respect to any such action or proceeding brought by a third party, the Issuers shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to such Trustee Indemnified Party who shall not, except with the consent of such Trustee Indemnified Party, be counsel to the Issuers or any Affiliate thereof. Upon assumption by the Issuers of the defense of any such action or proceeding, such Trustee Indemnified Party shall have the right to participate in such action or proceeding and to retain its own separate counsel, but the Issuers shall not be liable for any legal fees or expenses of such a separate counsel subsequently incurred by such Trustee Indemnified Party in connection with the defense thereof unless (i) the Issuers have agreed to pay such fees and expenses or (ii) counsel provided by the Issuers pursuant to the foregoing is counsel to the Issuers and such Trustee Indemnified Party shall have been advised by such counsel that representation of such Trustee Indemnified Party by such counsel provided by the Issuers pursuant to the foregoing would be inappropriate due to actual or potential conflicting interests between the Issuers and such Trustee Indemnified Party, including situations in which there are one or more legal defenses available to such Trustee Indemnified Party that are different from or additional to those available to the Issuers; provided, however, that the Issuers shall not, in connection with any such action or proceeding, or separate but substantially similar action or proceeding arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time, in addition to any local counsel, for any such Trustee Indemnified Party. The Issuers shall not consent to the terms of any compromise or settlement of any action defended by the Issuers in accordance with the foregoing without the prior consent of the Trustee Indemnified Party. The Issuers shall not be required to indemnify any Trustee Indemnified Party for any amount paid or payable by such Trustee Indemnified Party in settlement of any action, proceeding or investigation without the prior written consent of the Issuers, which consent shall not be unreasonably withheld. Promptly after receipt by any Trustee Indemnified Party of notice of its involvement (or the involvement of any of its Affiliates or such Affiliate’s directors, officers, shareholders, agents or employees) in any action, proceeding or investigation, such Trustee Indemnified Party shall, if a claim for indemnification in respect thereof is to be made against the Issuers hereunder, notify the Issuers in writing of such involvement, but the failure of such Trustee Indemnified Party to provide such notice shall neither cause the forfeiture of the right to receive indemnity hereunder nor limit such right, except to the extent, if any, that the Issuers are prejudiced by the failure of the Trustee Indemnified Party to promptly give such notice. The Issuers’ indemnification obligations under this Section 11.01(i) shall survive payment of the Notes and any resignation, removal or replacement of the Trustee. The indemnification provided herein is limited in each case to actual damages and does not extend to consequential damages.
(ii) The Trustee shall be authorized to make, at the expense of the Issuers, all required refilings of any Financing Document to preserve the liens created thereby to the extent not so done by the Issuers, the Servicer as provided herein or therein, but shall have no obligation to take any action to protect, preserve or enforce any rights or interests in the Financing Documents or towards the execution or enforcement of the trusts hereby or thereby created which, in its opinion, shall be likely to involve expense or liability to the Trustee, unless the Trustee shall have received an agreement satisfactory to the Trustee in its sole discretion to indemnify it against such liability and expense. The 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 Financing Document or in any other instruments to be performed or observed by the Issuers or any other party to any Financing Document (including, without limitation, the necessity or desirability under any applicable state law to re-record, re-register or re-file any Financing Document). In accepting the trusts hereunder and under the Financing Documents, the Trustee is acting solely as Trustee hereunder and not in its individual capacity and all Persons, other than the Issuers and the Holders, having any claim against the Trustee arising by reason hereof shall look only to the Property for payment or satisfaction thereof except as provided herein.
(iii) The Trustee shall incur no 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, the Trustee may exercise any of the powers hereof directly or through its agents or attorneys and may, at the expense of the Issuers, consult with counsel, accountants and other skilled Persons to be selected and employed by it, and the reasonable expenses thereof shall be paid by the Issuers, and the 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 Trustee was negligent in ascertaining the pertinent facts.
(iv) The Trustee shall have no duty to make, arrange or ensure the completion of any recording, filing or registration of any Financing Document, any instrument of further assurance, any instrument constituting part of any of the Property, or any amendments or supplements to any of said instruments and the Trustee shall have no duty to make, arrange or ensure the completion of the payment of any fees, charges or taxes in connection therewith (and the Trustee may act with respect to the Notes Financing Documents and pay out deposited monies without regard thereto), or to give any notice thereof, or to make, arrange or ensure the completion of the payment of or be under any duty in respect of any tax, assessment or other governmental charge that may be levied or assessed on any of the Property or any part thereof or against the Issuers. Notwithstanding the foregoing, the Trustee agrees that it will notify the Issuers in writing of any filings, fees, taxes or other payments required in connection with the satisfaction of the Issuers’ obligations hereunder and under the other Financing Documents known to a Trust any Responsible Officer of the Trustee has occurred assigned to its Corporate Trust Office and is continuingactively involved in the administration of the Loan.
(v) Whenever, in administering the trust, the Trustee shall exercise such deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may, in the absence of bad faith on the part of the rights Trustee, request and powers vested rely upon (unless other evidence in respect thereof be specifically prescribed herein or in any Financing Document) an Officer’s Certificate of the Issuers, and such Officer’s Certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof, but in its discretion the Trustee may in lieu thereof accept other evidence of such fact or matter or may require such further or additional evidence as it may deem reasonable.
(vi) Whenever, in administering the trust, the Trustee shall be permitted whether pursuant to the terms of this Indenture or any other Financing Document, to determine to grant or withhold its consent to or waiver or approval of any matter described herein or therein or to take or omit to take any action or course of conduct permitted or required hereunder or thereunder, the Trustee shall be fully protected in making such determination based solely upon the written direction of the Servicer or, absent such direction, (a) on the basis of the related submission required by this Indenture or by such other Financing Document, as the case may be, or (b) if a standard for such determination is specified herein or therein, on the basis of its determination in good faith as to whether or not such standard has been satisfied, or (c) if no such standard is specified, on the basis of its determination in good faith as to (x) with respect to any act, omission or course of conduct, whether such act, omission or course of conduct is reasonable (which determination may be made solely on the basis of advice from professionals selected by the Trustee with reasonable care) and use (y) with respect to the selection of any professional, whether the party proposing the engagement of such professional is motivated primarily by interests contrary to those of the Holders in making such proposal; provided, that in each case, that the Trustee grants or withholds its consent or approval or takes any other action on a timely basis. The Trustee shall not be required to seek the individual consents or approvals of the Holders with respect to any such consent or approval unless the same degree shall be explicitly required by the terms of care and skill in their exercise this Indenture or such other Financing Document, as a prudent person would exercise or use under the circumstances case may be. Without limiting the generality of the foregoing, in the conduct event the approval of his or her own affairsthe Trustee is requested by the Servicer with respect to a settlement of an insurance claim pursuant to the Indenture, the Trustee shall be fully protected in granting such approval based on directions from the Servicer.
(bvii) The Trustee shall have no obligation to see to the payment or discharge of any liens (other than the liens of the Financing Documents, and then only to the extent therein provided), 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.
(viii) The Trustee shall not be concerned with or accountable to any Person for the use or application of any deposited monies that shall be released or withdrawn in accordance with the provisions hereof or of any other Financing Document 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 Trustee shall have no liability for the acts of other parties hereto that are not in accordance with the provisions hereof.
(ix) Trustee shall not be charged with knowledge of any Event of Default hereunder or under any other Financing Document (except default in the payment of monies to the Trustee that the Issuers are required to pay or cause to be paid to the Trustee on or before a specified date and except default in the delivery of any certificate, opinion or other document expressly required to be delivered to the Trustee by any provision hereof or any Financing Document) or any condition which after notice and/or the passage of time would constitute an Event of Default or any other fact, circumstance or event the occurrence of which would require the Trustee to give any notice or otherwise take any action (any such Event of Default, condition, circumstance or other event, an “Event”), unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge of such Event or (ii) written notice of such Event shall have been given to and received by the Trustee, by any Issuer, the Servicer or any Holder or Holders of at least 25% in aggregate principal amount of the Notes.
(x) The Trustee shall not be responsible of any act or omission of the Servicer and Servicer shall not be responsible for any act or omission of the Trustee.
(xi) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of Default, the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and.
(2xii) In the absence of actual knowledge on the part of a Responsible Officer to the contrary 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; 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 certificates and opinions same to determine whether or not they conform on their face to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cxiii) The In the case an Event of Default known to the Trustee may not has occurred and is continuing, the Trustee shall exercise (subject, in all cases, to the rights and powers vested in the Servicer pursuant to this Indenture), with respect to the Notes, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his own affairs.
(xiv) No provision of this Indenture shall be relieved construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act act, or its own willful misconductmisconduct or bad faith, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2A) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved by a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3B) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.to
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) In case an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm the Trustee by the Issuers, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Clearwire Corp /DE)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.the time, method and place of conducting 108 114 any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Financial Guaranty Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Acceptance Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice in accordance with Section 106 of such Event of Default or failure to make such payment shall have been given to the Trustee by the Company, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. The Trustee shall not be deemed to have knowledge of, or be required to act (including the sending of any notice) based on, any event unless a Responsible Officer of the Trustee receives written notice of such an event or has obtained actual knowledge of such an event.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity or security against such risk of or liability is not reasonably assured to it;
(5) the permissive right of the Trustee to take any action enumerated in this Indenture shall not be construed as a duty; and
(6) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Ellington Financial LLC)
Duties of the Trustee. (a) If The duties, responsibilities and liabilities of the Trustee in respect of the Financing Documents and the other duties and liabilities of the Trustee under this Indenture shall be as follows:
(i) The Trustee (and the Servicer on its behalf) shall have the full power and authority to do all things not inconsistent with the provisions of this Indenture or any other Financing Document that it may deem advisable in order to enforce the provisions hereof or thereof or to take any action with respect to a default or an Event of Default hereunder or thereunder, or to institute, appear in or defend any suit or other proceeding with respect hereto or thereto, or to protect the interests of the Holders; provided, however, that notwithstanding the foregoing or any other provisions of this Indenture to the contrary, the Notes shall be serviced by the Servicer and the powers vested in the Servicer hereunder shall not be exercised by the Trustee except as expressly set forth herein. Neither the Trustee nor any of its directors, officers, shareholders, agents or employees (each, a “Trustee Indemnified Party” and, collectively, the “Trustee Indemnified Parties”) shall be answerable to or accountable for, except for its or their own bad faith, willful misconduct or negligence, and the Issuers agree to indemnify and save harmless the Trustee Indemnified Parties from, any costs, expenses, liabilities and damages that any of them may incur or sustain, in good faith and without willful misconduct or negligence, in the exercise and performance of the Trustee’s powers and duties hereunder and the acceptance or administration of the trust or trusts hereunder, under the Indenture or under any other Financing Document, including the cost and expense of defending themselves against any claim or liability in connection with the exercise or performance thereof; provided, however, that if it is found that any such claim or liability has resulted from the bad faith, willful misconduct or negligence of any Trustee Indemnified Party in the performance of its duties hereunder, such Trustee Indemnified Party shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to that portion of its acts or omissions that is the subject of such finding. If any Trustee Indemnified Party is entitled to receive indemnification hereunder with respect to any such action or proceeding brought by a third party, the Issuers shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to such Trustee Indemnified Party who shall not, except with the consent of such Trustee Indemnified Party, be counsel to the Issuers or any Affiliate thereof. Upon assumption by the Issuers of the defense of any such action or proceeding, such Trustee Indemnified Party shall have the right to participate in such action or proceeding and to retain its own separate counsel, but the Issuers shall not be liable for any legal fees or expenses of such a separate counsel subsequently incurred by such Trustee Indemnified Party in connection with the defense thereof unless (i) the Issuers have agreed to pay such fees and expenses or (ii) counsel provided by the Issuers pursuant to the foregoing is counsel to the Issuers and such Trustee Indemnified Party shall have been advised by such counsel that representation of such Trustee Indemnified Party by such counsel provided by the Issuers pursuant to the foregoing would be inappropriate due to actual or potential conflicting interests between the Issuers and such Trustee Indemnified Party, including situations in which there are one or more legal defenses available to such Trustee Indemnified Party that are different from or additional to those available to the Issuers; provided, however, that the Issuers shall not, in connection with any such action or proceeding, or separate but substantially similar action or proceeding arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time, in addition to any local counsel, for any such Trustee Indemnified Party. The Issuers shall not consent to the terms of any compromise or settlement of any action defended by the Issuers in accordance with the foregoing without the prior consent of the Trustee Indemnified Party. The Issuers shall not be required to indemnify any Trustee Indemnified Party for any amount paid or payable by such Trustee Indemnified Party in settlement of any action, proceeding or investigation without the prior written consent of the Issuers, which consent shall not be unreasonably withheld. Promptly after receipt by any Trustee Indemnified Party of notice of its involvement (or the involvement of any of its Affiliates or such Affiliate’s directors, officers, shareholders, agents or employees) in any action, proceeding or investigation, such Trustee Indemnified Party shall, if a claim for indemnification in respect thereof is to be made against the Issuers hereunder, notify the Issuers in writing of such involvement, but the failure of such Trustee Indemnified Party to provide such notice shall neither cause the forfeiture of the right to receive indemnity hereunder nor limit such right, except to the extent, if any, that the Issuers are prejudiced by the failure of the Trustee Indemnified Party to promptly give such notice. The Issuers’ indemnification obligations under this Section 11.01(i) shall survive payment of the Notes and any resignation, removal or replacement of the Trustee. The indemnification provided herein is limited in each case to actual damages and does not extend to consequential damages.
(ii) The Trustee shall be authorized to make, at the expense of the Issuers, all required refilings of any Financing Document to preserve the liens created thereby to the extent not so done by the Issuers, the Servicer as provided herein or therein, but shall have no obligation to take any action to protect, preserve or enforce any rights or interests in the Financing Documents or towards the execution or enforcement of the trusts hereby or thereby created which, in its opinion, shall be likely to involve expense or liability to the Trustee, unless the Trustee shall have received an agreement satisfactory to the Trustee in its sole discretion to indemnify it against such liability and expense. The 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 Financing Document or in any other instruments to be performed or observed by the Issuers or any other party to any Financing Document (including, without limitation, the necessity or desirability under any applicable state law to re-record, re-register or re-file any Financing Document). In accepting the trusts hereunder and under the Financing Documents, the Trustee is acting solely as Trustee hereunder and not in its individual capacity and all Persons, other than the Issuers and the Holders, having any claim against the Trustee arising by reason hereof shall look only to the Property for payment or satisfaction thereof except as provided herein.
(iii) The Trustee shall incur no 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, the Trustee may exercise any of the powers hereof directly or through its agents or attorneys and may, at the expense of the Issuers, consult with counsel, accountants and other skilled Persons to be selected and employed by it, and the reasonable expenses thereof shall be paid by the Issuers, and the 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 Trustee was negligent in ascertaining the pertinent facts.
(iv) The Trustee shall have no duty to make, arrange or ensure the completion of any recording, filing or registration of any Financing Document, any instrument of further assurance, any instrument constituting part of any of the Property, or any amendments or supplements to any of said instruments and the Trustee shall have no duty to make, arrange or ensure the completion of the payment of any fees, charges or taxes in connection therewith (and the Trustee may act with respect to the Notes Financing Documents and pay out deposited monies without regard thereto), or to give any notice thereof, or to make, arrange or ensure the completion of the payment of or be under any duty in respect of any tax, assessment or other governmental charge that may be levied or assessed on any of the Property or any part thereof or against the Issuers. Notwithstanding the foregoing, the Trustee agrees that it will notify the Issuers in writing of any filings, fees, taxes or other payments required in connection with the satisfaction of the Issuers’ obligations hereunder and under the other Financing Documents known to a Trust any Responsible Officer of the Trustee has occurred assigned to its Corporate Trust Office and is continuingactively involved in the administration of the Loan.
(v) Whenever, in administering the trust, the Trustee shall exercise such deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may, in the absence of bad faith on the part of the rights Trustee, request and powers vested rely upon (unless other evidence in respect thereof be specifically prescribed herein or in any Financing Document) an Officer’s Certificate of the Issuers, and such Officer’s Certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof, but in its discretion the Trustee may in lieu thereof accept other evidence of such fact or matter or may require such further or additional evidence as it may deem reasonable.
(vi) Whenever, in administering the trust, the Trustee shall be permitted whether pursuant to the terms of this Indenture or any other Financing Document, to determine to grant or withhold its consent to or waiver or approval of any matter described herein or therein or to take or omit to take any action or course of conduct permitted or required hereunder or thereunder, the Trustee shall be fully protected in making such determination based solely upon the written direction of the Servicer or, absent such direction, (a) on the basis of the related submission required by this Indenture or by such other Financing Document, as the case may be, or (b) if a standard for such determination is specified herein or therein, on the basis of its determination in good faith as to whether or not such standard has been satisfied, or (c) if no such standard is specified, on the basis of its determination in good faith as to (x) with respect to any act, omission or course of conduct, whether such act, omission or course of conduct is reasonable (which determination may be made solely on the basis of advice from professionals selected by the Trustee with reasonable care) and use (y) with respect to the selection of any professional, whether the party proposing the engagement of such professional is motivated primarily by interests contrary to those of the Holders in making such proposal; provided, that in each case, that the Trustee grants or withholds its consent or approval or takes any other action on a timely basis. The Trustee shall not be required to seek the individual consents or approvals of the Holders with respect to any such consent or approval unless the same degree shall be explicitly required by the terms of care and skill in their exercise this Indenture or such other Financing Document, as a prudent person would exercise or use under the circumstances case may be. Without limiting the generality of the foregoing, in the conduct event the approval of his or her own affairsthe Trustee is requested by the Servicer with respect to a settlement of an insurance claim pursuant to the Indenture, the Trustee shall be fully protected in granting such approval based on directions from the Servicer.
(bvii) The Trustee shall have no obligation to see to the payment or discharge of any liens (other than the liens of the Financing Documents, and then only to the extent therein provided), 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.
(viii) The Trustee shall not be concerned with or accountable to any Person for the use or application of any deposited monies that shall be released or withdrawn in accordance with the provisions hereof or of any other Financing Document 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 Trustee shall have no liability for the acts of other parties hereto that are not in accordance with the provisions hereof.
(ix) Trustee shall not be charged with knowledge of any Event of Default hereunder or under any other Financing Document (except default in the payment of monies to the Trustee that the Issuers are required to pay or cause to be paid to the Trustee on or before a specified date and except default in the delivery of any certificate, opinion or other document expressly required to be delivered to the Trustee by any provision hereof or any Financing Document) or any condition which after notice and/or the passage of time would constitute an Event of Default or any other fact, circumstance or event the occurrence of which would require the Trustee to give any notice or otherwise take any action (any such Event of Default, condition, circumstance or other event, an “Event”), unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge of such Event or (ii) written notice of such Event shall have been given to and received by the Trustee, by any Issuer, the Servicer or any Holder or Holders of at least 25% in aggregate principal amount of the Notes.
(x) The Trustee shall not be responsible for any act or omission of the Servicer and Servicer shall not be responsible for any act or omission of the Trustee.
(xi) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of Default, the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and.
(2xii) In the absence of actual knowledge on the part of a Responsible Officer to the contrary 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; 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 certificates and opinions same to determine whether or not they conform on their face to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cxiii) The In the case an Event of Default known to the Trustee may not has occurred and is continuing, the Trustee shall exercise (subject, in all cases, to the rights and powers vested in the Servicer pursuant to this Indenture), with respect to the Notes, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his own affairs.
(xiv) No provision of this Indenture shall be relieved construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act act, or its own willful misconductmisconduct or bad faith, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2A) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved by a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3B) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.t
Appears in 1 contract
Duties of the Trustee. (a1) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee Trustee, once it has actual knowledge or has received written notification of such Event of Default, shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
(b2) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1a) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and.
(2b) In the absence of bad faith negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture. However; however, in the case of any certificates such Officer’s Certificates or opinions Opinions of Counsel which by any provision provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates such Officer’s Certificates and opinions Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c3) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1a) this paragraph This clause (3) does not limit the effect of paragraph sub-clause (2) of this Section 612.
(b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3c) the The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it takes or omits with respect to take Securities of any series in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Securities of such series relating to Section 6.5the 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 with respect to the Securities of such series.
(d4) Whether or not therein expressly so provided, every Every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aSections 612(1), (b), (c2) and (e) of this Section 7.13).
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f5) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by applicable law.
(6) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial or personal 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 to believe that repayment of such funds or adequate indemnity or security against such risk or liability is not reasonably assured to it.
(7) 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 and to the provisions of the Trust Indenture Act. The rights, protections and indemnities afforded the Trustee hereunder shall also apply to any Paying Agent, Security Registrar, Transfer Agent and Authenticating Agent, as applicable.
Appears in 1 contract
Sources: Indenture (W. P. Carey Inc.)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.7.07; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itpowers.
(fD) Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to the provisions of this Section 10.01.
(H) The Trustee will not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the Notes.
(I) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event.
(J) Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
Appears in 1 contract
Sources: Indenture (Imax Corp)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuingcontinuing of which a Responsible Officer has actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.7.06; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have has reasonable grounds for believing to believe that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(fD) Each provision of this Indenture that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Unless a Responsible Officer of the Trustee has received notice from the Company that Additional Interest is owing on the Notes or that the Company has elected to pay Special Interest on the Notes, the Trustee may assume no Additional Interest or Special Interest, as applicable, is payable.
(H) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee will not be charged with knowledge of any document or agreement other than this Indenture and the Notes.
Appears in 1 contract
Duties of the Trustee. (a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of gross negligence or willful misconduct 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 of this Indenture; but in the case of any such certificates or opinions specifically required by any provision hereof to be provided to it, the Trustee will examine the same to determine whether or not they conform to the requirements of this Indenture, but not to verify the contents thereof including, but not limited to, the accuracy of mathematical calculations.
(b) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingactual knowledge or of which written notice in accordance with Section 106 of such Event of Default shall have been given to the Trustee by the Issuers, any other obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs.
. The Trustee shall not be deemed to have knowledge of, or be required to act (bincluding the sending of any notice) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties based on, any event unless a Responsible Officer of the Trustee shall be determined solely by the express provisions receives written notice of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants such an event or obligations shall be read into this Indenture against the Trustee; and
(2) In the absence has obtained actual knowledge 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)such an event.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity or security against such risk of or liability is not reasonably assured to it;
(5) the permissive right of the Trustee to take any action enumerated in this Indenture shall not be construed as a duty; and
(6) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Ellington Financial Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice in accordance with Section 106 of such Event of Default or failure to make such payment shall have been given to the Trustee by the Issuers, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. The Trustee shall not be deemed to have knowledge of, or be required to act (including the sending of any notice) based on, any event unless a Responsible Officer of the Trustee receives written notice of such an event or has obtained actual knowledge of such an event.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity or security against such risk of or liability is not reasonably assured to it;
(5) the permissive right of the Trustee to take any action enumerated in this Indenture shall not be construed as a duty; and
(6) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Ellington Financial LLC)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holder unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconductmisconduct as determined by a final non-appealable order of a court of competent jurisdiction, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.Section 7.06; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights or powers, if it has reasonable grounds to believe that repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
(D) Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itpowers.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to the provisions of this Section 10.01.
(H) The Trustee will not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the Notes.
(I) Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
Appears in 1 contract
Sources: Indenture (Lucid Group, Inc.)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; except that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement provided that such action has been approved by the Certificate Insurer;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.8.01 unless a Responsible Officer obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Certificate Insurer, as the case may be; and
(e) No provision of this Indenture shall require the Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Mortgage Trust 2000-2)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this the Indenture and the other Security Agreements, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the occurrence and continuance of an Event of Default known to the TrusteeDefault:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need undertakes to perform only those duties that are specifically set forth in this the Indenture and no others, and no implied covenants or obligations shall be read into this the Indenture or any other Security Agreement against the Trustee; and
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this the Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1i) this paragraph This clause does not limit the effect of paragraph clause (b) or paragraph (e) of this Section;Section 11.1.
(2ii) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3iii) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5and contemplated by the Indenture.
(iv) The Trustee shall not be charged with knowledge of Event of Default or a Rapid Amortization Event unless a Trust Officer obtains actual knowledge thereof or receives written notice thereof.
(v) The Trustee shall not be charged with knowledge of any default by the Fleet Manager in the performance of its obligations under any Related Document, unless a Trust Officer of the Trustee obtains actual knowledge thereof or receives written notice thereof.
(d) Whether or not therein expressly so providedNotwithstanding anything to the contrary contained in the Indenture, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itit by the security afforded to it by the terms of the Indenture or if it shall not have received indemnity reasonably satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Registrar, if not the Trustee, shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Registrar, as the case may be, under the Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required; provided that, in connection with the Trustee’s performance of any such obligation of the Paying Agent to pay funds hereunder, the Trustee shall have received from the Paying Agent any such funds previously advanced to the Paying Agent.
(f) The Trustee shall not be liable for interest on or the investment of any money Subject to Section 11.3, all monies received by it except as the Trustee may agree with the Company. Money shall, until used or applied as herein provided, be held in trust by for the Trustee purposes for which they were received, but need not be segregated from other funds except to the extent required by lawlaw or the Related Documents.
Appears in 1 contract
Sources: Indenture Agreement (Amerco /Nv/)
Duties of the Trustee. (a) If an Event of Default with respect Other than while acting in its capacity as Successor Servicer, the Trustee, prior to the Notes known to occurrence of a Trust Servicer Default of which a Responsible Officer of the Trustee has actual knowledge and after the curing of all Servicer Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied duties or covenants shall be read into this Agreement against the Trustee. If a Responsible Officer of the Trustee has actual knowledge that a Servicer Default has occurred and is continuing(which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement and use the same degree of care and skill in their exercise exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.. Pooling and Servicing Agreement
(b) Except during the continuance of an Event of Default known to the The Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 receipt of any resolutions, certificates, statements, certificates opinions, reports, documents, orders or opinions other instruments furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to the Trusteeany provision of this Agreement or any Supplement, the Trustee shall examine the certificates and opinions them to determine whether or not they substantially conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer Agreement or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) Supplement. The Trustee shall not be liable for interest on or give prompt written notice to the investment Certificateholders, any Enhancement Provider and each Rating Agency of any money received by it except as material lack of conformity of any such instrument to the Trustee may agree with the Company. Money held in trust applicable requirements of this Agreement or any Supplement discovered by the Trustee need not be segregated from other funds except which would entitle any Enhancement Provider or a specified percentage of the Investor Certificateholders to the extent required by lawtake any action pursuant to this Agreement or any Supplement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Muehlstein Holding Corp)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders and the Certificate Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.;
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person Person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of form required by this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectOfficer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, 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.
(e) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (ed) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee 7.01 and to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itthe TIA.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds or assets except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Gencorp Inc)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing(which has not been cured or waived) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that the Trustee will not be responsible for the accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents or other instruments. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall take such action as it deems appropriate to have the instrument corrected. On each Distribution Date, the Trustee, shall make monthly distributions and the final distribution to the Certificateholders from funds in the Distribution Account as provided in Sections 5.01 and 10.01 herein. No provision of this 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 misconduct; provided, however, that:
(bi) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to which may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2ii) the Trustee shall not be liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent facts; andfacts related thereto;
(3iii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the consent or at the direction received by it of Holders of Certificates as provided herein relating to the time, method and place of conducting any remedy pursuant to Section 6.5.this Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee under this Agreement;
(div) Whether the Trustee shall not be responsible for any act or not therein expressly so provided, every provision omission of this Indenture that is the Servicer (except in any way related its capacity as successor servicer to the Trustee is subject to paragraphs (aextent provided in Section 7.02(a)), (b)the Depositor, (c) and (e) of this Section 7.1.the Seller or the Custodian, or any successor Custodian; and
(ev) No provision of this Indenture shall require the Trustee shall not be charged with knowledge of any Event of Default unless a Responsible Officer of the Trustee at the Corporate Trust Office obtains actual knowledge of such failure or the Trustee receives written notice at the Corporate Trust Office of such Event of Default. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, 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 of 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 the Servicing 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 the Servicing Agreement.
(b) On or prior to the Closing Date, the Trustee shall deliver to the Sponsor and the Depositor a certification in the form of Exhibit R attached hereto specifying the items it will address in its assessment of compliance with the servicing criteria under this Section 8.01. On or before March 1 of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall deliver to the Sponsor and the Depositor a report regarding its assessment of compliance with the servicing criteria that it has identified in its certification in the form of Exhibit R, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report, with respect to asset-backed security transactions taken as a whole in which the Trustee is performing any activities that address any of the servicing criteria identified by it in such certification and that are backed by the same asset type backing such asset-backed securities. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the servicing criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable servicing criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable servicing criteria, which report shall be delivered by the Trustee as provided in section 8.01(c).
(c) On or before March 1st of each calendar year, beginning with March 1, 2007 (but in no event later than March 15th) unless and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee shall, at its own expense, cause a firm of independent public accountants (who may also render other services to Trustee), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor and the Depositor a report to the effect that such firm that attests to, and reports on, the assessment made by such asserting party pursuant to Section 8.01(b) above, which report shall be made in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board. Notwithstanding the foregoing, the Trustee may provide a copy of the above to the Depositor.
(d) The Trustee shall not appoint any Subcontractor without receiving the prior written consent of the Sponsor and the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor.
(e) The Trustee shall notify the Depositor and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB, (ii) of any merger, consolidation or sale of substantially all of the assets of the Trustee and (iii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit S. On or before March 1 of each year, the Depositor shall distribute the information on Exhibit S to the Trustee.
(f) The Trustee shall not be liable for interest on or Each of the investment parties hereto acknowledges and agrees that the purpose of any money received this Section 8.01(b)-(e) is to facilitate compliance by it except as the Trustee may agree Seller and the Depositor with the Companyprovisions of Regulation AB, as such may be amended or clarified from time to time. Money held Therefore, each of the parties agrees that the parties’ obligations hereunder will be supplemented and modified as necessary to be consistent with any such amendments, interpretive advice or guidance, convention or consensus among active participants in trust by the Trustee need not be segregated from other funds except asset-backed securities markets, advice of counsel, or otherwise in respect of the requirements of Regulation AB and the parties shall comply, to the extent required practicable from a timing and information systems perspective, with requests made by lawthe Seller or the Depositor for delivery of additional or different information as the Sponsor or the Depositor may determine in good faith is necessary to comply with the provisions of Regulation AB.
(g) The Trustee’s obligation to provide assessments of compliance and attestations under this Section 8.01 shall terminate upon the filing of a Form 15 suspension notice on behalf of the Trust Fund. Notwithstanding the foregoing, after the occurrence of such event, and provided the Depositor is not otherwise provided with such reports or copies of such reports, the Trustee shall be obligated to provide a copy of such reports, by March 15 of each year, to the Depositor.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default or failure to make such payment shall have been given to the Trustee by the Company, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. The Trustee shall not be deemed to have knowledge of, or be required to act (including the sending of any notice) based on, any event unless a Responsible Officer of the Trustee receives written notice of such an event or has obtained actual knowledge of such an event.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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;
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.;
(f5) The the permissive right of the Trustee to take any action enumerated in this Indenture shall not be liable for interest on or the investment of any money received by it except construed as a duty; and
(6) under no circumstances shall the Trustee may agree with be liable in its individual capacity for the Company. Money held in trust obligations evidenced by the Trustee need not be segregated from other funds except to the extent required by lawNotes.
Appears in 1 contract
Sources: Indenture (Kaiser Aluminum Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) In case an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm the Trustee by the Issuer, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or other facts stated therein)use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders and the Certificate Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates (or all affected Certificates, as appropriate) aggregating not less than 51% relating to Section 6.5.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 Agreement provided that such action has been approved by the Certificate Insurer; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Certificate Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable 101 107 responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof or any conclusions therein.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer of the Trustee by the Issuer, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or other facts stated therein)use under the circumstances in the conduct of such person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph paragraphs (ba) or paragraph (ed) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fe) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Duties of the Trustee. (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default with respect to the Notes known to of which a Trust Responsible Officer of the Trustee shall have actual knowledge shall have occurred (which has occurred not been cured) and is continuingsubject to the provisions of Section 9.13, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.. The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they substantially conform to the requirements of this Agreement. If any such document or instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee shall, subject to the provisions of Section 9.13, take such action as it deems appropriate to have the document or instrument corrected, and if it is not corrected to the Trustee's reasonable satisfaction, the Trustee will provide notice thereof to the Certificateholders and the Certificate Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(ba) Except during prior to the continuance occurrence of an Event of Default, and after the curing of all such Events of Default known to that may have occurred, the Trustee:
(1) The duties and obligations of the Trustee shall be determined solely by the express provisions of this IndentureAgreement, and the Trustee need perform only those shall not be liable except for the performance of such duties that and obligations as are specifically set forth in this Indenture and no othersAgreement, and no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee; Trustee and
(2) In , in the absence of bad faith on its partthe part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions 98 104 expressed therein, upon any statementscertificates, certificates filings or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this SectionAgreement;
(2b) the Trustee shall not be personally liable for any an error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectTrustee, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3c) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received of the Holders of Certificates evidencing Voting Interests represented by it pursuant all Certificates aggregating not less than 51% relating to Section 6.5.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 Agreement provided that such action has been approved by the Certificate Insurer; and
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject shall not be charged with knowledge of any failure by the Servicer to paragraphs comply with the obligations of the Servicer referred to in clauses (a), (b), (c) and (eb) of this Section 7.1.
(e) No provision 8.01 unless a Responsible Officer obtains actual knowledge of this Indenture shall require such failure or the Trustee receives written notice of such failure from the Servicer, the Holders of Certificates evidencing Voting Interests represented by all Certificates aggregating not less than 51% or the Certificate Insurer, as the case may be. The Trustee shall not be required 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The , and none of the provisions contained in this Agreement shall in any event require the Trustee shall not to perform, or be liable responsible for interest on or the investment manner of performance of, any money received by it of the obligations of the Servicer under this Agreement, except during such time, if any, as the Trustee may agree shall be the successor to, and be vested with the Company. Money held rights, duties, powers and privileges of, the Servicer in trust by accordance with the Trustee need not be segregated from other funds except to the extent required by lawterms of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aames Capital Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof.
(but b) If an Event of Default has occurred and is continuing in respect of which a Responsible Officer has received written notice by the Issuers, any other obligor of the Notes or by Holders of at least 25% of the aggregate principal amount of the Notes, the Trustee shall not be required to confirm exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or investigate use under the accuracy circumstances in the conduct of mathematical calculations or other facts stated therein)such person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectfaith, unless it is shall be proved in a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(32) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.1Section.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Garrett Motion Inc.)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof or any conclusions therein.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer of the Trustee by the Issuer, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall exercise such of mathematical calculations the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or other facts stated therein)use under the circumstances in the conduct of such person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph paragraphs (ba) or paragraph (ed) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need Notes Collateral Agent undertake to perform such respective duties and only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the TrusteeTrustee or the Notes Collateral Agent; and
(2) In in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including the accuracy of any mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other facts stated therein)obligor of the Notes or by Holders of at least 30% of the aggregate principal amount of the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this SectionSection 6.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.
(d) Whether or not therein expressly so providedthe time, every provision method and place of this Indenture that is in conducting any way related proceeding for any remedy available to the Trustee is subject to paragraphs (a)or the Notes Collateral Agent, (b)or exercising any trust or power conferred upon the Trustee or the Notes Collateral Agent, (c) and (e) of under this Section 7.1.Indenture; and
(e4) No provision of this Indenture shall require the Trustee or the Notes Collateral Agent 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 6.01.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture Indenture, but not to verify the contents thereof or any conclusions therein.
(but b) If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge (in the case of an Event of Default under clause (1) or (2) of Section 501 hereof) or (in the case of any other Event of Default) of which written notice of such Event of Default shall not be required have been given to confirm a Responsible Officer of the Trustee by the Company, any other obligor of the Notes or investigate by any Holder, the accuracy Trustee shall, in the exercise of mathematical calculations or other facts stated therein)its power, use the degree of care of a prudent person in the conduct of his own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph paragraphs (ba) or paragraph (ed) of this SectionSection 601;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fe) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 601.
Appears in 1 contract
Sources: Indenture (NMI Holdings, Inc.)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingactually received written notice or has actual knowledge of such Event of Default, the Trustee shall may exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates such Officer’s Certificates and opinions Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act gross negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 11.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.7.06; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights or powers, if it has reasonable grounds to believe that repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
(D) Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 11.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability in the performance of any of its duties or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itpowers.
(fF) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee will be subject to the provisions of this Section 11.01.
(H) The Trustee will not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any records maintained by any co-Note Registrar with respect to the Notes.
(I) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actually received written notice of such event.
(J) Under no circumstances will the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
Appears in 1 contract
Sources: Indenture (Boxed, Inc.)
Duties of the Trustee. (a) If an Event of Default has occurred and is continuing with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuingConvertible Debentures, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known with respect to the TrusteeConvertible Debentures:
(1i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, ; and no implied covenants or obligations shall be read into this Indenture against the Trustee; and39
(2ii) 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 any statements, certificates or opinions furnished to the Trustee and conforming on their face to the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1i) this paragraph (c) does not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 6.1;
(2ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.55.8.
(d) Whether or not therein expressly so provided, every Every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.16.1.
(e) No provision of this Indenture shall require the The Trustee may refuse to expend perform any duty or exercise any right or power or extend or risk its own funds or otherwise incur any financial liability in the performance of unless it receives indemnity satisfactory to it against any of its duties loss, liability or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itexpense.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Appears in 1 contract
Sources: Indenture (McKesson Corp)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuingcontinuing of which a Responsible Officer has actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and, if requested, provided, to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1i) The the duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
(2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act negligence or its own willful misconduct, except that:
(1i) this paragraph does will not limit the effect of paragraph (b) or paragraph (e) of this SectionSection 10.01(B);
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.7.06; and
(div) Whether or not therein expressly so provided, every no provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have has reasonable grounds for believing to believe that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(fD) Each provision of this Indenture that in any way relates to the Trustee is subject to clauses (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.
(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(F) The Trustee shall will not be liable for interest on or the investment of any money received by it it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds funds, except to the extent required by law.
(G) Unless a Responsible Officer of the Trustee has received notice from the Company that Additional Interest is owing on the Notes or that the Company has elected to pay Special Interest on the Notes, the Trustee may assume no Additional Interest or Special Interest, as applicable, is payable.
(H) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, including as Note Agent.
(I) The Trustee will not be charged with knowledge of any document or agreement other than this Indenture and the Notes.
Appears in 1 contract
Sources: Indenture (LumiraDx LTD)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default actually known to a Responsible Officer of the Trustee:,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need Notes Collateral Agent undertake to perform such respective duties and only those such duties that as are specifically set forth in this Indenture and no othersthe Security Documents, as applicable, and no implied covenants or obligations shall be read into this Indenture or the Security Documents, as applicable, against the TrusteeTrustee or the Notes Collateral Agent; and
(2) In in the absence of bad faith faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including the accuracy of any mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other facts stated therein)obligor of the Notes or by Required Holders, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does Section 6.01(c) shall not be construed to limit the effect of paragraph (b) or paragraph (e) of this SectionSection 6.01(a);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of the Required Holders relating to Section 6.5.
(d) Whether or not therein expressly so providedthe time, every provision method and place of this Indenture that is in conducting any way related proceeding for any remedy available to the Trustee is subject to paragraphs (a)or the Notes Collateral Agent, (b)or exercising any trust or power conferred upon the Trustee or the Notes Collateral Agent, (c) and (e) of under this Section 7.1.Indenture; and
(e4) No no provision of this Indenture shall require either the Trustee or the Notes Collateral Agent 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section 6.01.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subject, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.55.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.16.01.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall not be required to confirm or investigate verify the contents thereof including, but not limited to, the accuracy of mathematical calculations calculations.
(b) If an Event of Default has occurred and is continuing or the Company has failed to make a payment in respect of the Special Mandatory Redemption of which, in each case, a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Event of Default or failure to make such payment shall have been given to the Trustee by the Company, any other facts stated therein)obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5.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; and
(d4) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and powers hereunder, including, without limitation, the provisions of Section 6.5 hereofor powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(fd) The 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 not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except subject to the extent required by lawprovisions of this Section.
Appears in 1 contract
Sources: Indenture (Kaiser Aluminum Corp)
Duties of the Trustee. (aA) If an Event of Default with respect to the Notes known to has occurred and is continuing of which a Trust Responsible Officer of the Trustee has occurred and is continuingwritten notice or actual knowledge, the Trustee shall will exercise such of the rights and powers vested in it by this Indenture Indenture, and use the same degree of care and skill in their exercise its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her such person’s own affairs; provided that the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(bB) Except during the continuance of an Event of Default known to Default: (i) the Trustee:
(1) The duties of the Trustee shall will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall will be read into this Indenture against the Trustee; and
and (2ii) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates Officer’s Certificates or opinions furnished Opinions of Counsel that are provided to the Trustee and conforming conform to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein)Indenture.
(cC) The Trustee may not be relieved from liability liabilities for its own negligent action, its own negligent failure to act gross negligence or its own willful misconduct, except that:
: (1i) this paragraph does will not limit the effect of paragraph Section 10.01(B); (b) or paragraph (e) of this Section;
(2ii) the Trustee shall will not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
and (3iii) the Trustee shall will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.57.06 or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Notes.
(dD) Whether or not therein expressly so provided, every Each provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (aA), (b), (cB) and (eC) of this Section 7.110.01, regardless of whether such provision so expressly provides.
(e) No provision of this Indenture 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 or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Appears in 1 contract
Duties of the Trustee. Subject to the provisions of Trust Indenture Act Section 315(a) through 315(d):
(a) If if a Default or an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.;
(b) Except except during the continuance of a Default or an Event of Default known to the TrusteeDefault:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that as are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into implied in this Indenture against that are adverse to the Trustee; and
(2) In in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively exclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).Indenture;
(c) The the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph subsection (c) does not limit the effect of paragraph Subsection (b) or paragraph (e) of this SectionSection 601;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectResponsible Officer, unless it is shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith faith, in accordance with the direction of the Holders of a direction received by it pursuant majority in principal amount of the Outstanding Securities relating to Section 6.5.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;
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No no provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(e) whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to Subsections (a), (b), (c) and (d) of this Section 601; and
(f) The the Trustee shall not be liable for interest on or the investment of any money or assets received by it except as the Trustee may agree with the Company. Money Assets held in trust by the Trustee need not be segregated from other funds assets except to the extent required by law.
Appears in 1 contract
Sources: Indenture (Bell Atlantic Corp)
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the its rights and powers vested in it by this Indenture and use the same degree of care and skill in their its exercise as a prudent person man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the TrusteeDefault:
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and.
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but shall not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).of
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this This paragraph does not limit the effect of paragraph (b) or paragraph (e) of this Section;.
(2) the The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectfaith, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and.
(3) the The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.56.05.
(d) Whether or not therein expressly so provided, every Every provision of this Indenture that is in any way related relates to the Trustee is subject to paragraphs (a), (b), ) and (c) and (e) of this Section 7.1Section.
(e) No provision of this Indenture shall require the The Trustee may refuse to expend perform any duty or risk its own funds exercise any right or otherwise incur power unless it receives indemnity satisfactory to it against any financial loss, liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, including, without limitation, the provisions of Section 6.5 hereof, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to itexpense.
(f) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree otherwise agreed with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by lawCorporation.
Appears in 1 contract
Duties of the Trustee. (a) If an Event of Default with respect to the Notes known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:Default,
(1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture, undertakes to perform such duties and the Trustee need perform only those such duties that as are specifically set forth in this Indenture and no othersIndenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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 any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, ; but in the case of any such certificates or opinions which specifically required by any provision hereof are specifically required to be furnished provided to the Trusteeit, the Trustee shall be under a duty to examine the certificates and opinions same to determine whether or not they conform to the requirements of this Indenture (Indenture, but shall need not be required to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other obligor of the Notes or by Holders of at least 25% of the aggregate principal amount of the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The No provision of this Indenture shall be construed to relieve the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act act, or its own willful misconduct, except that:
(1) this paragraph does (c) shall not be construed to limit the effect of paragraph (b) or paragraph (ea) of this SectionSection 6.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Responsible Officer or any other officer of the Trustee to whom such matter is referred, because of such person's knowledge of and familiarity with the particular subjectAgent, unless it is shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it takes or omits to take in good faith in accordance with the direction of the Holders of a direction received by it pursuant majority in aggregate principal amount of the Outstanding Notes relating to Section 6.5the 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related relating to the conduct or affecting the liability of or affording protection to the Trustee is shall be subject to paragraphs (a), (b), (c) and (e) the provisions of this Section 7.16.01.
(e) No provision of this Indenture 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 and or powers hereunder, including, without limitation, the provisions of Section 6.5 hereofvested in it by this Indenture, if it the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment Each Holder, by its acceptance of any money received by it except as Notes and the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except Guarantees, consents and agrees to the extent required by lawterms of the Escrow Agreement (including, without limitation, the provisions providing for the deposit, investment and release of property held thereunder) and authorizes and directs the Escrow Agent and the Trustee, as applicable, to enter into and perform their respective obligations and exercise their respective rights under the Escrow Agreement pursuant to the terms thereof.
Appears in 1 contract
Sources: Indenture (Apergy Corp)