Upon the occurrence of an Event of Default hereunder, in addition to its remedies contained in the Indenture, the Mortgagee on its own behalf and on behalf of the Holders may take any or all of the following actions, at the same or at different times (...)Enter upon and take possession of the Mortgaged Property, and lease and let the Mortgaged Property, or any part thereof, and receive all the rents, issues and profits thereof which are overdue, due or to become due, and apply the same, after payment of all reasonably necessary charges and expenses, on account of the amounts hereby secured, and the Mortgagee is hereby given and granted full power and authority to do any act or thing, which the Mortgagor might or could legally do in connection with the management and operation of the Mortgaged Property. The granting of the authority so created shall not, prior to entry upon and taking of possession of the Mortgaged Property by the Mortgagee, be deemed or construed to constitute the Mortgagee in possession nor thereafter or at any time or in any event obligate the Mortgagee to perform or discharge any obligation of the Mortgagor or to appear in or defend any action or proceeding relating to the Mortgaged Property or the leases relating thereto nor shall the Mortgagee be liable in any way for any injury or damage to person or property sustained by any individual or individuals in or about the Mortgaged Property and the Mortgagor agrees to indemnify and hold harmless the Mortgagee against any and all such liability, loss or damage, except for losses occurring as the result of gross negligence or willful misconduct on the part of the Mortgagee.
2004The Trustees shall conduct the affairs of the Trust in accordance with and subject to the terms of this Trust Agreement. In accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the following (...) As among the Trustees, each Administrative Trustee shall severally have the power, authority and authorization to act on behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, such agreements, documents, instruments, certificates and other writings as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, the Common Securities Subscription Agreement and the Junior Subordinated Note Purchase Agreement and to cause the Trust to perform its obligations under the Purchase Agreement executed by the Depositor on behalf of the Trust;
(C) assisting in the sale or transfer of the Preferred Securities in one or more transactions exempt from registration under the Securities Act, and in compliance with this Trust Agreement and applicable state securities or blue sky laws;
(D) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes to the Holders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent, Securities Registrar and Calculation Agent in accordance with this Trust Agreement;
(F) execution and delivery of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(G) execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Trust;
(H) preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust;
(I) establishing a record date with respect to all actions to be taken hereunder that require a record date to be established, except as provided in Section 6.10(a);
(J) unless otherwise required by the Delaware Statutory Trust Act, to execute on behalf of the Trust (either acting alone or together with the other Administrative Trustees) any documents and other writings that such Administrative Trustee has the power to execute pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as such Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and authorized to operate the Trust so that the Trust will not be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, so that the Notes will be treated as indebtedness of the Depositor for United States federal income tax purposes and so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act. In respect thereof, each Administrative Trustee is authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee determines in his or her discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Preferred Securities. In no event shall the Administrative Trustees be liable to the Trust or the Holders for any failure to comply with this Section X to the extent that such failure results solely from a change in law or regulation or in the interpretation thereof.
X, in consultation with the Treasury Department, hereby appoints the Trustees as trustees of the Trust to have all of the rights, powers, authorities, discretions, and duties set forth herein and, subject to the terms and conditions of this Trust Agreement, as otherwise provided to trustees under the laws governing the administration of the Trust. The Trustees hereby accept said appointment, acknowledge the receipt of the sum of One Dollar ($1.00) (together with any other property, including the Company Preferred Stock, that the Trust may otherwise receive, the "Trust Assets"), and covenant that they will hold the Trust Assets in trust upon and subject exclusively to the terms and conditions set forth herein, for the sole benefit of the Treasury.
2009Subject to the terms and conditions of this Trust Agreement, X hereby establishes a trust designated as the X Credit Facility Trust for the sole benefit of the Treasury, which, for the avoidance of doubt, means that any property distributable to the Treasury as a beneficiary hereunder shall be paid to the Treasury for deposit into the General Fund as miscellaneous receipts.
2009In no event shall a Trustee be responsible or liable for any failure or delay in the performance of obligations hereunder arising out of or caused by, directly or indirectly, forces beyond the Trustee's control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
2009The Trustees shall maintain or cause to be maintained records sufficient to document each significant action taken by the Trustees pursuant to this Trust Agreement and shall provide the X with the following reports in a format and manner reasonably requested by the X:
1 Monthly custodial reports;
2 Quarterly summary of significant actions (votes, consents, etc);
3 Quarterly reports summarizing the efforts and activities to effect the sale or other disposition of the Trust Stock or other Trust Assets;
4 Minutes of any meetings of the Trustees; and
5 The Divestiture Plan, as amended from time to time by the Trustees.
2009The rights, immunities, duties and responsibilities of the Trustees shall be as provided by this Trust Agreement and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Trustees; provided, however, that if an Event of Default known to the Property Trustee has occurred and is continuing, the Property Trustee shall, prior to the receipt of directions, if any, from the Holders of at least a Majority in Liquidation Amount of the Preferred Securities, exercise such of the rights and powers vested in it by this Trust Agreement, 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. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Trustees 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 or their rights or powers, if it or they 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. Whether or not herein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Section X. To the extent that, at law or in equity, a Trustee has duties and liabilities relating to the Trust or to the Holders, such Trustee shall not be liable to the Trust or to any Holder for such Trustee's good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Trustees otherwise existing at law or in equity, are agreed by the Depositor and the Holders to replace such other duties and liabilities of the Trustees.
2 There may be intermediary cases in which the authority of the agent is general in nature, but limited to certain types or categories of acts necessary for the conduct of the business.
Please cite as: "Commentary to Trans-Lex Principle , https://www.trans-lex.org/915600"