Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement. (b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity. (c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee. (d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities. (e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month. (f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets. (g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary. (h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. (i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. (j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel. (k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency. (l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care. (m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets. (n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 7 contracts
Samples: Trust Agreement (Genworth Financial Inc), Trust Agreement (Genworth Financial Inc), Trust Agreement (Genworth Financial Inc)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity Person other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which the Depository Trust Company and the Participants Trust Company. The Trustee shall have no liability whatsoever for the action or inaction of any depositary or for any losses resulting from the maintenance of Eligible Securities with a default depositary. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account at the end of each calendar month, but in no event later than seven (7) business days after the month end, which shall include the market value of such Assets as of the end of the calendar month. The statement shall be provided in an electronic format reasonably accessible to the Company and the Grantor.
(f) Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions from (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact fact, or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice Anything in relation this Agreement to matters arising the contrary notwithstanding, in no event shall the Trustee, be liable under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect connection with this Agreement for indirect, special, incidental, punitive or consequential losses or damages of any transaction contemplated hereby kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee, has been advised of the possibility thereof and regardless of the form of action in good faith and in accordance with the opinion of which such counseldamages are sought.
(k) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets or for the validity, perfection, priority or enforceability of the liens in any of the Assets, 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 of title to the Assets, for insuring the Assets or for the payment of taxes, charges, assessments or liens upon the Assets.
(l) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee, including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, accidents, labor disputes, loss or malfunction of utilities or computer software or hardware, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(m) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset Assets within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 4 contracts
Samples: Coinsurance Agreement (Genworth Financial Inc), Retrocession Agreement (Genworth Financial Inc), Coinsurance Agreement (Genworth Financial Inc)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for The Trustee shall notify the Grantor and the Beneficiary in writing within five (5) days following each deposit to to, or withdrawal from, the Trust Account; provided, however, the Trustee shall determine notify the Grantor and the Beneficiary in writing within one (1) day following (i) each withdrawal from the Trust Account that totals an amount equal to or in excess of $20,000,000 or (ii) any number of withdrawals that results in an amount equal to or in excess of $20,000,000 if such withdrawals occur within a two day period of each other. The Trustee will be deemed to have delivered such notice of deposit, withdrawal and receipt of Grantor Withdrawal Notice or Beneficiary Withdrawal Notice, as applicable, if each such notice is available on one or more of the Trustee’s systems for the delivery of electronic media to which system(s) Grantor and Beneficiary have access.
(b) The Trustee shall not accept any Assets (other than cash) for deposit into the Trust Account unless the Trustee determines that it is or will be the registered owner of and holder of legal title to the Assets or that such Asset is Assets are in such form that, to that the extent practicable, the Beneficiary whenever necessary Trustee may, or the Trustee upon direction by the Beneficiary willif applicable to such asset class, negotiate any such Asset Assets, without consent or signature from the Grantor or any other person or entity other than entity. Any Assets received by the Trustee which, if applicable to such asset class, are not in accordance with such proper negotiable form or for which title has not been transferred to the terms of this Trust AgreementTrustee shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether that any Assets (other than cash) in the Trust Account are or not any instructions given continue to be Eligible Securities.
(d) All Assets shall be held in a safe place by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that Trustee at the Trustee’s duties are solely those set forth herein and office in the United States, except that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company and the Participants Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the TrusteeTrustee and shall forward such mail to the party to whom it is directed.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon at the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar monthquarter.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-attorneys in fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-attorney in fact or Investment Manager prior to receipt by it of notice of the revocation of the written authority of the attorney-in-attorney in fact or Investment Manager, or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith, and in no event shall the Trustee be liable for special, punitive, or consequential losses or damages arising in connection with this Agreement.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for . If any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of third party asserts a delinquency of a timely payment in regard to lien against any of the Assets, the Trustee shall inform shall, upon becoming aware of such assertion, promptly notify both the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyclaim.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(l) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee such as to any act or provision of any present or future law or regulation or governmental authority, terrorism, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex.
(m) The Trustee is not required to make advances of cash, securities or any other property on behalf of the Trust Account, or permit overdrafts in the Trust Account in connection with the acquisition or disposition of Assets in the Trust Account.
(n) The Parties acknowledge and agree that certain At any time in connection with the performance of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereofits services under this Agreement, the “Servicing/Custodial Agreements”)Trustee may consult with counsel selected by it who may be counsel for Grantor or Beneficiary. The Grantor opinion of said counsel will be full and the Beneficiary acknowledge complete authority and agree that (i) protection for the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any action taken, suffered or omitted by it in good faith and in accordance with the opinion of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties said counsel other than with respect to the Servicing/Custodial Agreements or any withdrawal of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance Assets by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBeneficiary.
Appears in 4 contracts
Samples: Reinsurance Trust Agreement, Reinsurance Trust Agreement (Primerica, Inc.), Reinsurance Trust Agreement (Primerica, Inc.)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for The Trustee shall notify the Grantor and the Beneficiary in writing within five (5) days following each deposit to to, or withdrawal from, the Trust Account; provided, however, the Trustee shall determine notify the Grantor and the Beneficiary in writing within three (3) business days following (i) each withdrawal from the Trust Account that totals an amount equal to or in excess of $20,000,000 or (ii) any number of withdrawals that results in an amount equal to or in excess of $20,000,000 if such withdrawals occur within a two day period of each other. The Trustee will be deemed to have delivered such notice of deposit, withdrawal and receipt of Grantor Withdrawal Notice or Beneficiary Withdrawal Notice, as applicable, if each such notice is available on one or more of the Trustee’s systems for the delivery of electronic media to which system(s) Grantor and Beneficiary have access.
(b) The Trustee shall not accept any Assets (other than cash) for deposit into the Trust Account unless the Trustee determines that it is or will be the registered owner of and holder of legal title to the Assets or that such Asset is Assets are in such form that, to that the extent practicable, the Beneficiary whenever necessary Trustee may, or the Trustee upon direction by the Beneficiary willif applicable to such asset class, negotiate any such Asset Assets, without consent or signature from the Grantor or any other person or entity other than entity. Any Assets received by the Trustee which, if applicable to such asset class, are not in accordance with such proper negotiable form or for which title has not been transferred to the terms of this Trust AgreementTrustee shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether that any Assets (other than cash) in the Trust Account are or not any instructions given continue to be Eligible Securities.
(d) All Assets shall be held in a safe place by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that Trustee at the Trustee’s duties are solely those set forth herein and office in the United States, except that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company and the Participants Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the TrusteeTrustee and shall forward such mail to the party to whom it is directed.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon at the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-attorneys in fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-attorney in fact or Investment Manager prior to receipt by it of notice of the revocation of the written authority of the attorney-in-attorney in fact or Investment Manager, or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith, and in no event shall the Trustee be liable for special, punitive, or consequential losses or damages arising in connection with this Agreement.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for . If any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of third party asserts a delinquency of a timely payment in regard to lien against any of the Assets, the Trustee shall inform shall, upon becoming aware of such assertion, promptly notify both the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyclaim.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(l) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee such as to any act or provision of any present or future law or regulation or governmental authority, terrorism, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex.
(m) The Trustee is not required to make advances of cash, securities or any other property on behalf of the Trust Account, or permit overdrafts in the Trust Account in connection with the acquisition or disposition of Assets in the Trust Account.
(n) The Parties acknowledge and agree that certain At any time in connection with the performance of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereofits services under this Agreement, the “Servicing/Custodial Agreements”)Trustee may consult with counsel selected by it who may be counsel for Grantor or Beneficiary. The Grantor opinion of said counsel will be full and the Beneficiary acknowledge complete authority and agree that (i) protection for the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any action taken, suffered or omitted by it in good faith and in accordance with the opinion of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties said counsel other than with respect to the Servicing/Custodial Agreements or any withdrawal of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance Assets by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBeneficiary.
Appears in 3 contracts
Samples: Trust Agreement (Primerica, Inc.), 80% Coinsurance Trust Agreement (Primerica, Inc.), Trust Agreement (Primerica, Inc.)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(d) The Trustee may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as the Depository Trust Company and the Participants Trust Company. Assets may be held in the name of a nominee maintained by the Trustee or by any such depository.
(e) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(f) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and the Beneficiary Beneficiary; respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary Anything in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrarycontrary notwithstanding, in no event shall the Trustee shall Trustee, be liable under or in connection with this Agreement for (i) subject to Section 7(n)indirect, the safekeeping special, incidental, punitive or consequential losses or damages of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)any kind whatsoever, including but not limited to loss due to firelost profits, burglarywhether or not foreseeable, robberyeven if the Trustee, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand has been advised of the Grantor or Beneficiary, promptly replace such Assets with like kind possibility thereof and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer regardless of the Assets to obtain reissue form of action in which such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caredamages are sought.
(ml) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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, willful misconduct or lack of good faith on the part of the Trustee, for the validity of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(nm) The Parties acknowledge and agree that certain Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended Federal Reserve Bank wire or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”telex or other wire or communication facility). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 3 contracts
Samples: Trust Agreement (Darwin Professional Underwriters Inc), Trust Agreement (Darwin Professional Underwriters Inc), Trust Agreement (Darwin Professional Underwriters Inc)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterthereafter (the “Monthly Statement”).The Monthly Statement shall list (i) all of the Assets[ with CUSIP number (if applicable)] and other specific identifying information with respect to any Asset[ that has no CUSIP number], and (ii) any transfers of Assets to or from the Trust Account during such calendar month, including all purchases and sales of Assets during such calendar month. The statement Monthly Statement shall include a description be given as soon as practicable, but in no event later than ten (10) Business Days after the end of the calendar month most recently concluded. At the Grantor’s or the Beneficiary’s request, the Trustee may provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager by granting access to the Trustee’s automated data system affording on-line access to trust accounts information. The Monthly Statement under this Section 7(a) and the notices under Section 7(c) hereof shall be deemed given by the Trustee to the Grantor and the Beneficiary to the extent that the Grantor and the Beneficiary, as the case may be, had previously requested and had been given access to the Trustee’s automated data system affording on-line access to trust accounts information and such information is posted by the Trustee on such system within the relevant period.
(b) Before accepting any asset for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement. All Eligible Assets, including securities or other property, that take the form of an instrument or certificated security underlying any financial assets credited to the Trust Account shall be registered in the name of the Trustee, indorsed to the Trustee or in blank (either on the related instrument, on the certificated security or on a stock power).
(c) The Trustee shall notify the Grantor and the Beneficiary in writing, within ten (10) days, of any deposits to or withdrawals from the Trust Account.
(d) All Assets shall be safely held by the Trustee in its office in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Trust Account (a “Book-Entry Asset”) through the book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset at the Federal Reserve Bank of New York or in depositories such as the Depository Trust Company, Euroclear, Clearstream Banking S.A. and any other securities depository, book-entry system or clearing agency authorized to act as a securities depository, book-entry system or clearing agency pursuant to applicable law and identified to Grantor from time to time, and the respective successors and nominees of the foregoing (such a depository being referred to herein as a “Depository”). The Trustee shall identify on its books and records the Eligible Assets, cash, and Income held in the Trust Account Account, whether held directly or indirectly through Depositories. The Trustee will endeavor, to the extent practicable, to hold securities in the country or other jurisdiction in which the principal trading market for such securities is located, where such Eligible Assets are to be presented for cancellation and/or payment and/or registration, or where such Eligible Assets are acquired. The Trustee may hold cash and may deposit such cash with, and effect transactions through Depositories. Cash may be held in non-interest bearing commingled bank accounts in the name of the Trustee and the Trustee will record, on its books and records, the Trust’s entitlement to such cash. A Book-Entry Asset may be held in the name of a nominee maintained by the Trustee or any such Depository. The Trustee shall have no liability whatsoever for the action or inaction of any Depository, any issuer of securities, or for any losses resulting from the maintenance of Eligible Assets with a Depository. In no event shall the Trustee be delivered within five (5) business days following the end liable for holding Assets in any particular country or for losses related to or arising out of such calendar monthholding, including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions, regulations, exchange or currency controls, devaluations or market conditions affecting transfers, or execution of transactions
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the (i) The Trustee is authorized to follow and rely conclusively upon all instructions Communications (including, without limitation, Investment Orders, Withdrawal Notices and Termination Notices) given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Grantor Trustee from time to time by the Grantor, the Investment Manager or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor Grantor, the Investment Manager or the BeneficiaryBeneficiary (collectively “Instructions”), including, without limitation, instructions including Instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith without fraud, negligence or willful misconduct on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein or (ii) notice from any officer officer, agent or employee of the Grantor Grantor, the Investment Manager or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time a letter or incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt acknowledges and agrees that it is fully informed of notice the protections and risks associated with the various methods of such delinquency.
(l) Notwithstanding any provision of this Agreement transmitting instructions to the contraryTrustee, and that there may be more secure methods of transmitting instructions than the Trustee shall be liable for (i) subject to Section 7(n), method selected by the safekeeping sender. Each of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree agrees that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreementssecurity procedures, including with respect to any of the Assets at any time during which such Assets are under the careif any, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees followed in connection with a transmission of the Trustee), (ii) the performance by the Trustee instructions provide to it a commercially reasonable degree of any protection in light of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements particular needs and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscircumstances.
Appears in 3 contracts
Samples: Master Agreement (AXA Equitable Holdings, Inc.), Master Agreement (Protective Life Insurance Co), Master Agreement (Protective Life Corp)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to The Trustee shall receive Assets and hold the Trust Account, the Assets in a safe place;
(b) The Trustee shall determine that such Asset is the assets are in such a form that, to that the extent practicable, the Beneficiary whenever necessary mayBeneficiary, or the Trustee upon on direction by of the Beneficiary willBeneficiary, may negotiate such Asset whenever necessary, without consent or signature from the Grantor or any other person or entity other than the Trustee in accordance with the terms of this Trust Agreement.entity;
(bc) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary a statement of all Assets in the Trust Account on its inception at the end of each calendar quarter;
(d) The Trustee shall notify the Grantor and the Beneficiary, within 10 days, of any deposits to any provision of law. It is understood and agreed that or withdrawals from the Trust Account;
(e) The Trustee shall hold the Assets in the Trust Account at the Trustee’s duties are solely those set forth herein and that 's office in the United States;
(f) The Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of [ ] or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cg) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dh) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gi) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hj) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ik) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jl) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(km) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any invasion of the Assetstrust corpus to pay compensation to, or reimburse the expense of, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assetsis hereby prohibited.
(n) The Parties acknowledge and agree that certain Trustee shall deliver to the Beneficiary written notice of termination at least 30 days before termination of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 2 contracts
Samples: Trust Agreement (Platinum Underwriters Holdings LTD), Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for The Trustee shall notify the Grantor and the Beneficiary in writing within five (5) days following each deposit to to, or withdrawal from, the Trust Account. The Trustee will be deemed to have delivered such notice of deposit, withdrawal and receipt of Grantor Withdrawal Notice or Beneficiary Withdrawal Notice, as applicable, if each such notice is available on one or more of the Trustee’s systems for the delivery of electronic media to which system(s) Grantor and Beneficiary have access. The Trustee shall also furnish the Grantor and the Beneficiary with an advice of daily transactions and the Grantor and the Beneficiary each may elect to receive advices, confirmations, reports or statements electronically through the Internet to an email address specified by it for such purpose. By electing to use the Internet for this purpose, the Grantor and the Beneficiary each acknowledges that such transmissions are not encrypted and therefore are insecure. The Grantor and the Beneficiary each further acknowledges that there are other risks inherent in communicating through the Internet such as the possibility of virus contamination and disruptions in service, and each agrees that the Trustee shall determine not be responsible for any loss, damage or expense suffered or incurred by the Grantor or the Beneficiary or any person claiming by or through the Grantor or the Beneficiary as a result of the use of such methods.
(b) The Trustee shall not accept any Assets (other than cash) for deposit into the Trust Account unless the Trustee determines that it is or will be the registered owner of and holder of legal title to the Assets or that such Asset is Assets are in such form that, to that the extent practicable, the Beneficiary whenever necessary Trustee may, or the Trustee upon direction by the Beneficiary willif applicable to such asset class, negotiate any such Asset Assets, without consent or signature from the Grantor or any other person or entity other than entity. Any Assets received by the Trustee which, if applicable to such asset class, are not in accordance with such proper negotiable form or for which title has not been transferred to the terms of this Trust AgreementTrustee shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether that any Assets (other than cash) in the Trust Account are or not any instructions given continue to be Eligible Securities, or comply or continue to comply with the Investment Guidelines.
(d) All Assets shall be held in a safe place by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that Trustee at the Trustee’s duties are solely those set forth herein and office in the United States, except that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company and the Participants Trust Company. Assets may be held in the payment name of principal a nominee maintained by the Trustee or interest has occurred or to be responsible by any such depository. The Trustee shall have no liability whatsoever for the consequences of insolvency action or the legal inability inaction of any broker, dealer, bank depositary or other agent employed by for any losses resulting from the Grantor or Trustee maintenance of Eligible Securities with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entitya depositary.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the TrusteeTrustee and shall forward such mail to the party to whom it is directed.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon and the Income Account at the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions as provided for in this Agreement, given by officers of the Grantor or its duly authorized investment manager or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, telephone, facsimile transmission transmission, telegram, teletype, cable gram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party Party or partiesParties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions instructions, as provided for in this Agreement, (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith, and in no event shall the Trustee be liable for special, punitive, or consequential losses or damages arising in connection with this Agreement.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for . If any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of third party asserts a delinquency of a timely payment in regard to lien against any of the Assets, the Trustee shall inform shall, upon becoming aware of such assertion, promptly notify both the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyclaim.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(l) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee such as to any act or provision of any present or future law or regulation or governmental authority, terrorism, any act of God or war, accidents, labor disputes, loss or malfunction of utilities or corporate software or hardware, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(m) The Trustee is not required to make advances of cash, securities or any other property on behalf of the Trust Account, or permit overdrafts in the Trust Account in connection with the acquisition or disposition of Assets in the Trust Account.
(n) The Parties acknowledge and agree that certain At any time in connection with the performance of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereofits services under this Agreement, the “Servicing/Custodial Agreements”)Trustee may consult with counsel selected by it who may be counsel for Grantor or Beneficiary. The Grantor advice or opinion of said counsel will be full and the Beneficiary acknowledge complete authority and agree that (i) protection for the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any action taken, suffered or omitted by it in good faith and in accordance with the advice or opinion of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties said counsel other than with respect to the Servicing/Custodial Agreements or any withdrawal of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance Assets by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBeneficiary.
Appears in 2 contracts
Samples: Trust Agreement (Primerica, Inc.), Trust Agreement (Primerica, Inc.)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary or Direct Insurer whenever necessary may, or the Trustee upon direction by the Beneficiary or Direct Insurer will, negotiate such Asset without consent or signature from the Grantor or any person Person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Grantor, the Beneficiary or the Direct Insurer are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except Assets. The Trustee agrees to use reasonable efforts to advise the Grantor, the Beneficiary and the Direct Insurer of the occurrence of any default with respect to securities held in trust hereunder to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection it has received notice of any such person or entitysame.
(c) The Trustee shall accept and open all mail directed to the Grantor Grantor, the Beneficiary or the Beneficiary Direct Insurer in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible SecuritiesInvestments or to determine the value of any Asset.
(e) The Trustee shall furnish to the Grantor Grantor, the Beneficiary and the Beneficiary Direct Insurer a statement (the “Asset Statement”), containing (i) a description of all of the Assets in the Trust Account and (ii) information pertaining to all deposits, withdrawals and substitutions made during the statement period, upon the inception of the Trust Account and at the end of each calendar month thereafter; provided, however, the Asset Statement shall not include any other information regarding Commercial Mortgage Loans (which shall be reported on the Custody Transmission). The statement shall include a description of the Assets in the Trust Account and Asset Statement shall be delivered within five (5) business days Business Days following the end of each such calendar month. The Asset Statement to be delivered pursuant to this Section 7(e) shall be deemed delivered by the Trustee to the Grantor, the Beneficiary and the Direct Insurer to the extent that prior to the end of such calendar month, the Grantor, the Beneficiary and the Direct Insurer, as the case may be, had requested and been given access to the Trustee’s automated data system affording on-line access to Trust Account information and such information is posted by the Trustee on such system within the relevant period.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor Grantor, the Beneficiary or the BeneficiaryDirect Insurer, the Trustee shall promptly permit the Grantor Grantor, the Beneficiary, or the BeneficiaryDirect Insurer, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gi) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Grantor Trustee from time to time by the Grantor, any relevant Asset Manager, the Beneficiary or the Beneficiary Direct Insurer, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor Grantor, the Beneficiary or the BeneficiaryDirect Insurer, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (iA) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (iiB) from any officer of the Grantor Grantor, the Beneficiary or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Direct Insurer named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent the Beneficiary and the Direct Insurer acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the market value Trustee, and that there may be more secure methods of transmitting instructions than the method selected by the sender. Each of the Assets as of Grantor, the date of Beneficiary and the discovery of Direct Insurer agrees that the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assetssecurity procedures, as defined hereinif any, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject followed in connection with a transmission of instructions provide to servicing and custodial agreements it a commercially reasonable degree of protection in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any light of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements particular needs and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscircumstances.
Appears in 2 contracts
Samples: Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co), Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co)
Additional Rights and Duties of the Trustee. (a) The Trustee shall, concurrent with delivery of each monthly Valuation Report, deliver a summary of account activity for the month just ended to the Grantor and Beneficiary.
(b) Before accepting any Asset for deposit to the Reserve Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary willmay, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entityPerson.
(c) The Trustee shall notify the Grantor and the Beneficiary, within ten (10) days, of any deposits to or withdrawals from the Reserve Trust Account.
(d) All Assets shall be safely held by the Trustee in its office in the United States, except that the Trustee may deposit any Assets in the Reserve Trust Account in a book-entry account maintained at a Federal Reserve Bank or in depositories such as The Depository Trust Company (the Federal Reserve Bank and such other depositories being referred to herein as "Depositories"). Assets may be held in the name of a nominee maintained by the Trustee or by any such Depositories.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) . The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish promptly forward all mail to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar monthaddressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Reserve Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s 's normal business hours, hours any books, documents, papers and records relating to the Reserve Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely conclusively upon all instructions Communications (including, without limitation, Investment Orders, Withdrawal Notices and Termination Notices) given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the BeneficiaryBeneficiary (collectively "Instructions"), including, without limitation, instructions including Instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein or (ii) notice from any officer officer, agent or employee of the Grantor or the BeneficiaryBeneficiary named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, (ii) for any consequential, punitive or special damages, (iii) for the acts or omissions of its nominees, unless the Trustee chose such person without due care, or (iv) for an amount in excess of the value of the Assets, valued as of the most recent Valuation Report.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice selection in relation to matters arising under this Trust Agreement and shall have full shall, upon demand, be indemnified and complete authorization held harmless from and against any and all Losses by the other Parties Grantor hereunder for any action taken actions taken, omitted or suffered by it under in connection with this Trust Agreement or in respect of under any transaction contemplated hereby in good faith without gross negligence or willful misconduct and in accordance with opinion of such counsel. The opinion of such law firm shall be full and complete authority and protection for the Trustee with respect to any action taken, omitted or suffered by it in good faith and in accordance with the opinion of such counsellaw firm.
(k) The Trustee shall notify Subject to the Grantor requirement of good faith, reasonableness and Beneficiary in writing the lack of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assetsnegligence or willful misconduct, the Trustee shall inform be protected in acting upon any Communications (including, without limitation, any Investment Order or Instructions) reasonably believed by the Grantor Trustee to be genuine and to have been signed, sent or presented by the Beneficiary immediately upon proper party or parties. All notices to the Trustee (unless otherwise provided therein) shall be deemed to be effective when actually received by a responsible officer of the Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision Whenever, in the administration of the Reserve Trust Account created by this Agreement to the contraryAgreement, the Trustee shall reasonably deem it necessary or desirable that a matter be liable for (i) proved or established prior to taking, suffering or omitting any action thereunder, subject to Section 7(n)the requirement of reasonableness, good faith and lack of negligence and willful misconduct, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of the Grantor and/or the Beneficiary and delivered to the Trustee and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on reliance thereon, subject to this paragraph, but in its discretion exercised in a reasonable manner, the safekeeping Trustee may in lieu thereof accept other evidence of the Assets fact or matter or may require such other or additional evidence as it may deem reasonable.
(m) Except when otherwise expressly provided in this Agreement and administering subject to the Trust Account requirement of reasonableness, good faith and lack of negligence or willful misconduct, any Communications (including, without limitation, any Investment Order or Instructions) to be delivered or furnished by the Grantor or the Beneficiary shall be sufficient to be delivered or furnished in accordance the name of the Grantor or the Beneficiary by such officer or officers of the Grantor or the Beneficiary as may be designated in a certificate, resolution or letter of advice by such party. Written notice of such designation by the Grantor shall be filed with the provisions Trustee. The Trustee shall be protected in acting upon any Communications (including, without limitation, any Investment Order or Instruction) made by such officer or agent of this Trust Agreement and the Grantor or the Beneficiary with respect to the authority conferred on it.
(iin) its Except as may arise from the Trustee's own negligence, negligence or willful misconduct or lack of good faith faith, the Trustee is not responsible for any Losses resulting from reasons or causes beyond its control, including without limitation, nationalization, expropriation, currency restrictions, acts of war, terrorism, insurrection, revolution, civil unrest, riots or strikes, nuclear fusion or fission or acts of God.
(o) The Parties acknowledge that nothing in performing this Agreement shall obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(p) In the event of any reasonable ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Trustee hereunder, the Trustee may, in its duties under this Trust Agreementreasonable discretion, refrain from taking any action other than retain possession of the Assets, unless the Trustee receives written instructions, signed by the Grantor and the Beneficiary, which eliminate such ambiguity or uncertainty. The Trustee shall exercise In the standard event of care any dispute between or conflicting claims by or among the Grantor and the Beneficiary and/or any other Person with respect to any Assets, the Assets that Trustee shall be entitled, in its reasonable discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Assets, other than a professional trusteeWithdrawal Notice, engaged so long as such dispute or conflict shall continue, and the Trustee shall not be or become liable in the banking any way for such failure or trust company industryrefusal to comply with such conflicting claims, having professional expertise in financial and securities processing transactions and custody would observe in such affairsdemands or instructions. The Trustee shall be strictly liable for physical loss entitled to refuse to act until, in its reasonable discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or damage decree is not subject to Assets under its careappeal, custody, possession or control or settled by agreement between the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage conflicting parties as evidenced in a writing satisfactory to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), (ii) the Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate shall have received security or bond with the issuer an indemnity satisfactory to it sufficient to hold it harmless from and against any and all Losses which it may incur by reason of the Assets so acting. The Trustee may, in addition, elect, in its reasonable discretion, to obtain reissue of such Assetscommence an interpleader action or seek other judicial relief or orders as it may deem, orin its sole discretion, if acceptable to necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mq) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, provided that the Trustee shall not be responsible for any misconduct or negligence on the existence, genuineness or value part of any agent or attorney appointed with due care by it hereunder.
(r) The Securities Intermediary agrees that it will comply with entitlement orders issued by the Trustee in accordance with the terms of the Assetsthis Agreement, for the validity, perfection, priority or enforceability of the liens in or with respect and that such compliance is not subject to any conditions, qualifications or further consents. The Securities Intermediary will not comply with entitlement orders issued by any other Person.
(s) The Securities Intermediary hereby waives any right of the Assetscounterclaim, for the validity of title to the Assetsbanker's lien, for insuring the Assets, for the payment of taxes, charges, assessments liens or liens upon or perfection rights as securities intermediary with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor proceeds thereof and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Reserve Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 2 contracts
Samples: Reserve Trust Agreement (Scottish Re Group LTD), Reserve Trust Agreement (Scottish Re Group LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiaries in writing within ten days following each deposit to or withdrawal from the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the that a Beneficiary whenever necessary may, or the Trustee upon direction by the a Beneficiary willmay, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entityPerson.
(c) The Trustee may deposit any Assets in the Trust Account in a book-entry account maintained at a Federal Reserve Bank or in depositories such as the Depository Trust Company and the Participants Trust Company (the Federal Reserve Bank and such other depositories being referred to herein as “Depositories”).
(d) The Trustee shall accept and may open all mail directed to the Grantor or the a Beneficiary in care of the Trustee.
(d) . The Trustee shall have no responsibility whatsoever forward all mail to determine that any Assets in the Trust Account are addressee whether or continue to be Eligible Securitiesnot opened.
(e) The Trustee shall furnish to the Grantor and the Beneficiary Beneficiaries a statement of all Assets in the Trust Account upon the inception of the Trust Account and at within 15 days of the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable request of the Grantor or the a Beneficiary, the Trustee shall promptly permit the Grantor Grantor, a Beneficiary or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy[, at a location in New York, New York,] at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions Communications (including, without limitation, Investment Orders, Withdrawal Notices and Termination Notices), given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Grantor Trustee from time to time by the Grantor, a Beneficiary or the Beneficiary Investment Manager, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor Grantor, a Beneficiary or the Beneficiary, Investment Manager (collectively “Instructions”) including, without limitation, instructions Instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein, or (ii) notice from any officer officer, agent or employee of the Grantor Grantor, a Beneficiary or the BeneficiaryInvestment Manager named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of applicable law.
(j) The Trustee may confer with counsel of its own choice in In relation to matters arising under this Trust Agreement, the Trustee may confer with reputable counsel, experienced in the type of transactions contemplated by this Agreement and selected by it after consultation with the Grantor and the Beneficiaries. The opinion of such counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith without negligence or willful misconduct and in accordance with the opinion of such counsel, other than with respect to the withdrawal of Assets by a Beneficiary.
(k) The Trustee shall notify Whenever, in the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any administration of the AssetsTrust Account created by this Agreement, the Trustee shall inform reasonably deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, subject to the requirement of reasonableness, good faith and lack of negligence and willful misconduct, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of the Grantor and/or the Beneficiaries and delivered to the Beneficiary immediately upon Trustee’s receipt Trustee and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on reliance thereon, subject to this paragraph, but in its discretion exercised in a reasonable manner, the Trustee may in lieu thereof accept other evidence of notice of the fact or matter or may require such delinquencyother or additional evidence as it may deem reasonable.
(l) Notwithstanding any provision of this Agreement anything to the contrarycontrary provided herein, the Trustee is not responsible for any Losses resulting from reasons or causes beyond its control, including, without limitation, nationalization, expropriation, currency restrictions, acts of war, terrorism, insurrection, revolution, civil unrest, riots or strikes, nuclear fusion or fission or acts of God.
(m) The Parties acknowledge that nothing in this Agreement shall be liable obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(in) subject to Section 7(n)The Trustee hereby indemnifies the Grantor and the Beneficiaries for, the safekeeping and holds them harmless against, any Losses (including reasonable attorneys’ fees and expenses and reasonable consulting and accountants’ fees and expenses) incurred or paid, arising out of the Assets and administering the Trust Account or in accordance connection with the provisions of this Trust Agreement and (ii) its own Trustee’s negligence, willful misconduct or lack of good faith in performing the performance of its duties and obligations under this Trust Agreement, including, without limitation, any Loss arising out of or in connection with the status of the Trustee as the holder of record of any or all of the Assets. The Trustee hereby acknowledges that the foregoing indemnities shall exercise survive the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties resignation of the Trustee under Section 7(l), none and the termination of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAgreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Allstate Corp), Stock Purchase Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within five (5) Business Days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form thatthat the Trustee, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon receipt of written direction by the Beneficiary will, will be able to immediately negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee All Assets in the Trust Account shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to held by the Trustee in writing. Without limiting a safe place at the generality of Trustee’s office within the foregoingUnited States; provided, however, that the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company, and Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at least the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees and independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given furnished to the Trustee from time to time by officers of the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby may rely in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 2 contracts
Samples: Reinsurance Trust Agreement, Reinsurance Trust Agreement (Gainsco Inc)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for The Trustee shall notify the Grantor and the Beneficiary in writing within ten (10) days following each deposit to to, or withdrawal from the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ec) The Trustee shall furnish to the Grantor and the Beneficiary a complete statement of all Assets and their market valuations in the Trust Account upon the inception of the Trust Account and at the end of each calendar month monthly thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fd) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of reasonable notice from the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copycopy at their expenses, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(ge) Unless Except as otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all the instructions, and shall be fully protected in acting in accordance with such instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneysAttorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions to be genuine and to have been signed, sent or presented by the proper party or partiesparties and further provided such instructions are consistent with the terms of this Agreement. In The Trustee shall not be charged with notice of any change in authority of an officer or attorney-in-fact of either Grantor or Beneficiary until Trustee receives written notification of such change from the absence of negligence, the party for which it will be effective. The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hf) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) . The Trustee shall notify not be subject to, nor obliged to recognize, any other instrument governing the Grantor rights or duties of the other parties to this Agreement (including the Bond), even though reference thereto may be made in this Agreement. The Trustee shall be liable for its own and Beneficiary in writing its agents' negligence, willful misconduct, or lack of good faith, its being understood that central banks, depositories and clearing organizations are not the agents of the Trustee. In no event shall the Trustee be liable to any person for punitive, special, indirect or consequential damages of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice kind, even if it is advised of such defaultthe possibility thereof. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under resulting from the care, custody, possession or control of Trustee Trustee's or its subcustodiansagents' negligence, other agents willful misconduct, or nominee(s)lack of good faith, Trustee shallthe Trustee, upon demand of the Grantor or Beneficiaryat its option, shall promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the (at its own expense) said Assets (by by, among other methodsmeans, posting appropriate security or bond with the issuer of the Assets to obtain reissue issuers of such AssetsAssets and obtaining their reissuance) with other Assets of like kind and quality, or, if acceptable to the Grantor, deliver cash equivalent to the market or their value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careloss.
(mg) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of determine whether the Assets in the Trust are and will continue sufficient to be subject to servicing and custodial agreements in effect on secure the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no Grantor's liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBond.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Trust Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterquarter thereafter (the “Quarterly Statement”). The statement Quarterly Statement shall include a description list (i) all of the Trust Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Trust Asset that has no CUSIP number and (ii) any transfers of Trust Assets to or from the Trust Account during such calendar quarter, including all purchases and sales of Trust Assets during such calendar quarter. The Quarterly Statement shall be given as soon as practicable, but in no event later than ten (10) days after the end of each calendar quarter. In addition, the Trustee shall provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager of the Trust Assets in the Trust Account by granting access to the Trustee’s automated data system affording on-line access to trust account information. The Trustee will be deemed to have delivered the accountings of all Trust Assets in the Trust Account if such accounting is available on one or more of the Trustee’s automated systems affording on-line access to trust account information.
(b) Before accepting any asset (other than an Equity Investment or Eligible Derivative) for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement. Before accepting any Equity Investment or Eligible Derivative for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Trustee upon written direction by the Beneficiary may transfer and assign to the Beneficiary such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement.
(c) The Trustee shall notify the Grantor and the Beneficiary, within three (3) Business Days, of any deposits to or withdrawals from the Trust Account.
(d) All Trust Assets shall be delivered within five held in a safe place by the Trustee in its office in the United States, except that the Trustee may hold any Trust Asset that is in book-entry form as of the date it is credited to the Trust Account (5a “Book-Entry Asset”) business days following through the end book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a “Depository”). A Book-Entry Asset may be held in the name of such calendar montha nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Trust Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own fraud, negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable for any consequential, punitive or special damages.
(h) The Trustee shall be protected and held harmless and indemnified by the other parties hereto for any loss, liability or damage for following any statement, notice, resolution, request, consent, order, certificate, report, appraisal, opinion, letter or other paper or document reasonably believed by the Trustee to be genuine (including that it conforms on its face to the requirements of this Agreement) and to have been signed, sent or presented by Grantor and/or Beneficiary. All notices to the Trustee (unless otherwise provided therein) shall be deemed to be effective when received by the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Trust Assets in the Trust Account and for compliance with all provisions of this Agreement, whether or not the Trust Assets are in the Trustee’s possession.
(j) The Trustee may confer with counsel a nationally recognized outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsellaw firm.
(k) The Parties acknowledge that nothing in this Agreement shall require the Trustee to risk or expend its own funds in performing its obligations under this Agreement or obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any instructions, including, without limitation, any Investment Order provided, however, that if the Trustee chooses to make such advance, such advance shall be deemed an extension of credit by the Trustee to Grantor, which extension of credit shall be payable on demand and shall bear interest at the Trustee’s customary rate for similar extensions of credit. Grantor will be solely responsible for repayment of such extension of credit and any interest thereon. The Trustee shall notify not permit any overdrafts in the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyTrust Account.
(l) Notwithstanding The Trustee hereby waives any provision right of this Agreement counterclaim, banker’s lien, liens or perfection rights as securities intermediary with respect to the contraryTrust Assets and the Trust Account.
(m) It is herein acknowledged that, in accepting a deposit of any Mortgage Loan or Participation Asset into the Trust Account, the Trustee shall be liable under no duty or obligation to inspect, review or examine the actual content or substance of any related Loan Assignment Documents, any other loan document, security document or any other related document, instrument or agreement or to determine that they are genuine, enforceable, or appropriate for (i) subject the represented purpose or that they are other than what they purport to Section 7(n)be on their face. In no event shall the Trustee be responsible for the preparation of any Loan Assignment Documents, any other loan document, security document or any other instruments, agreements or documents relating to the safekeeping Mortgage Loan or Participation Asset or required for the deposit of the Assets and administering Mortgage Loan or Participation Asset into the Trust Account or for the expenses of such preparation or any other costs related thereto, including any filing fees therefor.
(n) It is herein acknowledged that, in accordance with accepting a deposit of any Equity Investment, Eligible Derivative or Private Placement into the provisions Trust Account, the Trustee shall be under no duty or obligation to inspect, review or examine the actual content or substance of this any related Other Assignment Documents or to determine that they are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face. In no event shall the Trustee be responsible for the preparation of any Other Assignment Documents or any other instruments, agreements or documents relating to the Equity Investment, Eligible Derivative or Private Placement or required for the deposit of the Equity Investment, Eligible Derivative or Private Placement into the Trust Agreement Account or for the expenses of such preparation or any other costs related thereto, including any filing fees therefor.
(o) The Trustee’s administrative obligations hereunder in respect of the Mortgage Loans, Participation Assets shall be limited to (a) the review of the Loan Assignment Documents as provided in Section 1(g)(ii), (b) the preparation and delivery of Quarterly Statement as provided in Section 6(a), and (iic) its own negligencethe execution of instruments or other documents provided to it, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The and the Trustee shall exercise the standard of care not be required to take any action with respect to any Mortgage Loan, Participation Asset or any Underlying Asset, except at the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand written direction of the Grantor or the Beneficiary, promptly replace such Assets with like kind and quality together withas applicable, all rights and privileges pertaining or as otherwise permitted pursuant to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careAgreement.
(mp) The With respect to any assignment and assumption agreement relating to a Mortgage Loan or Participation Asset, the Trustee is hereby authorized and directed, not in its individual capacity but solely in its capacity as Trustee, to execute and deliver such assignment and assumption agreements presented to the Trustee for execution from time to time. To the extent that, under the assignment and assumption agreements, the Trustee as assignee has undertaken or assumed any obligations or made any representations, warranties or covenants under the Mortgage Loans or Participation Assets, such obligations, representations, warranties or covenants shall not be responsible for the existence, genuineness or value of any those of the AssetsTrustee, for the validity, perfection, priority or enforceability but shall instead be those of the liens in Grantor and the Grantor shall perform or with respect cause to any of the Assetsbe performed all such obligations, for the validity of title to the Assetsrepresentations, for insuring the Assets, for the payment of taxes, charges, assessments warranties or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets covenants.
(other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). q) The Trustee shall have no responsibility for to the recording, filing extent that there is a failure in the withdrawal of a Mortgage Loan or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time Participation Asset specified in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any a Beneficiary Withdrawal Notice by Beneficiary as a result of the Grantor’s or applicable Investment Manager’s or the Beneficiary’s sale or transfer of such Mortgage Loan or Participation Assets.
(nr) The Parties Grantor and the Beneficiary hereby acknowledge and agree that certain the Trustee shall not have any obligations relating to any future funding commitments in respect of the Trust Assets are and will continue to be subject to servicing and custodial agreements in effect on (including, for the date hereof (as amended or otherwise modified from time to time, including any replacements thereofavoidance of doubt, the “Servicing/Custodial Agreements”Mortgage Loans and Participation Assets). .
(s) The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial AgreementsMortgage Loans or Participation Assets) taken pursuant to such agreements, including with respect to any of the Assets Mortgage Loan or Participation Asset at any time during which such Assets are Mortgage Loan or Participation Asset is under the care, custody, possession or control of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) or any of their respective other depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons other entities or persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) or as a result of the Assets such Mortgage Loan or Participation Asset being subject to the Servicing/Custodial Agreements any Servicing Agreement, and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) that cause such failure or as a result of the Assets being subject obligations under any Servicing Agreement or any other agreement (related to the Servicing/Custodial AgreementsMortgage Loans or Participation Assets). In no event will the Trustee be required to perform or assume any duties of any party under any Servicing Agreement.
(t) The Trustee shall, at the written direction of the Grantor, settle trades for Private Placements with Trust Assets held in the Trust Account pending receipt of the original evidence of indebtedness of such Private Placements in accordance with the directions from the Grantor (which original evidence of indebtedness may not be delivered for a period following the Trustee’s withdrawal of such Trust Assets); provided that the foregoing shall not relieve the Grantor of its obligations to comply with Section 1(b). Any investment directed by the Grantor or its Investment Manager will constitute a certification by the Grantor to the Trustee that the settlement procedures set forth in the applicable investment documentation is acceptable to the Grantor and directed hereunder, upon which direction the Grantor and the Beneficiary agree Trustee may conclusively rely.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit of Assets to, or withdrawal of Assets from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary willmay, negotiate transfer such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(d) Subject to the terms hereof, the Grantor and the Beneficiary each hereby authorizes the Trustee to hold any Assets or Income received by it from time to time for the Trust Account. The Trustee shall be entitled to utilize Depositories and Non-U.S. Subcustodians to the extent necessary in connection with its performance hereunder. It is understood and agreed that that Assets will not be held through the use of U.S. Subcustodians unless otherwise agreed in writing. Eligible Securities and Cash deposited by the Trustee in a Depository will be held subject to the rules, terms and conditions of such Depository. Eligible Securities and Cash held through Non-U.S. Subcustodians shall be held subject to the terms and conditions of the Trustee’s agreements with such Subcustodians. Non-U.S. Subcustodians may be authorized to hold Eligible Securities in central securities depositories or clearing agencies in which such Non-U.S. Subcustodians participate. Unless otherwise required by local law or practice or a particular subcustodian agreement, Eligible Securities deposited with Non-U.S. Subcustodians and Income will be held in a commingled account in the name of the Trustee as custodian or trustee for its customers. The Trustee shall identify on its books and records the Eligible Securities, Cash, and Income held in the Trust Account, whether held directly or indirectly through Depositories or Non-U.S. Subcustodians. The Trustee will endeavor, to the extent practicable, to hold Securities in the country or other jurisdiction in which the principal trading market for such Securities is located, where such Eligible Securities are to be presented for cancellation and/or payment and/or registration, or where such Eligible Securities are acquired. The Trustee may hold Cash only in U.S. dollars and may deposit such Cash with, and effect transactions through, Non-U.S. Subcustodians and Depositories. Assets may be held in the name of a nominee maintained by the Trustee or by any such Depository.
(e) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(f) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets and Income in the Trust Account upon the inception as of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records maintained by the Trustee relating to the Trust Account or the Assets.
(g1) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers Authorized Persons of the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, or electronic media, if the Trustee reasonably believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the Trustee, and that there may be more secure methods of transmitting instructions than the method selected by the sender. Each of the Grantor and the Beneficiary agrees: i) that the security procedures, if any, to be followed in connection with a transmission of instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances, and ii) to notify the Trustee immediately upon Trustee’s receipt learning of notice any compromise or unauthorized use of such delinquencythe security procedures.
(l2) Notwithstanding any provision Each of this Agreement the Grantor and the Beneficiary hereby authorize the Trustee to rely upon and comply with instructions and directions, including funds transfer instructions and Corporate Action Instructions, sent by S.W.I.F.T, e-mail, facsimile and other similar secure electronic transmissions containing applicable authorization codes, passwords and/or authentication keys issued by the contraryTrustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder (“Electronic Methods”) by persons reasonably believed by the Trustee to be authorized to give instructions and directions on behalf of the Grantor and/or the Beneficiary. Except as set forth below with respect to funds transfers, the Trustee shall be liable for (i) subject have no duty or obligation to Section 7(n)verify or confirm that the person who sent such instructions or directions is, the safekeeping in fact, a person authorized to give instructions or directions on behalf of the Assets Grantor and/or the Beneficiary (other than to verify that the signature on a facsimile is the signature of a person authorized to give instructions and administering directions on behalf of such party); and the Trust Account Trustee shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by the Grantor and/or the Beneficiary as a result of such reliance upon in accordance good faith or compliance with such instructions or directions. Each of the provisions Grantor and the Beneficiary agrees to assume all risks arising out of this Trust Agreement the use of Electronic Methods to submit instructions and (ii) directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties, except for any Losses caused by the Trustee’s or its own Affiliated Subcustodian’s negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of carefaith.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset be a bank which is in such form thata member of the Federal Reserve System of the United States of America or a New York State chartered bank or trust company and shall not be a parent, to the extent practicable, the Beneficiary whenever necessary may, subsidiary or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from affiliate of the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust AgreementBeneficiary.
(b) The Trustee shall be liable for its own negligence, willful misconduct or lack of good faith arising out of or in connection with the performance of its obligations in accordance with this Supplemental Trust Agreement. NY01/ 7269182.9
(c) The Trustee shall notify the Grantor and the Beneficiary in writing promptly, but in no event more than ten (10) calendar days, following each deposit into, or withdrawal from, the Supplemental Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice or Transfer Notice.
(d) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and or the Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Supplemental Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in willful misconduct or acted in bad with a lack of good faith in the selection of any such person or entity.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Supplemental Trust Account upon the inception of the Supplemental Trust Account and at regular intervals no less frequently than at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Supplemental Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Supplemental Trust Account or the Assets. Any out-of-pocket expenses incurred by the Trustee in relation to any such audit shall be reimbursed by the Grantor and/or the Beneficiary, as the case may be.
(gh) Unless otherwise provided in this Supplemental Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.. NY01/ 7269182.9
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Supplemental Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Supplemental Trust Agreement against the Trustee.
(ij) No provision of this Supplemental Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Supplemental Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Supplemental Trust Agreement and Agreement. The opinion of said counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such said counsel.
(k) The Trustee shall notify , other than with respect to the Grantor and Beneficiary in writing withdrawal of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In Assets by the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding any provision Except in the case of this Agreement to the contrarySurplus Notes (which shall be maintained by the Trustee in certificated form), the Trustee may maintain the Assets in book-entry form with, and utilize the services of, any Federal Reserve Bank, The Depository Trust Company or similar such depositories ("Central Depositories") as appropriate. Assets may be held in the name of a nominee maintained by the Trustee or any Central Depository.
(m) The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Supplemental Trust Account in accordance with the provisions of this Supplemental Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Supplemental Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)) selected by it, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In Notwithstanding the event foregoing, the Trustee shall not be responsible for loss of loss or damage to the Assets under the careheld in Central Depositories, custodyincluding but not limited to loss due to fire, possession burglary, robbery, theft or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caremysterious disappearance.
(mn) Whenever in the administration of the Supplemental Trust Account created by this Supplemental Trust Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of Grantor and/or Beneficiary, as appropriate, and delivered to the Trustee and said statement or certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof.
(o) The Trustee shall execute and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for the existence, genuineness any act or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)omission, or for the compliance of the Assets with any lawsNY01/ 7269182.9 solvency, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument such agent or noticebroker, including any financing unless in the case of agent(s), such agent(s) is selected by the Trustee, or continuation statement or any tax or securities formin the case of brokers, at any time in any public office or elsewhere for such broker is negligently selected by the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsTrustee.
(np) The Parties acknowledge and agree that certain Trustee is not required to make advances of cash, securities or any other property on behalf of the Supplemental Trust Account, or permit overdrafts in the Supplemental Trust Account in connection with the acquisition or disposition of Assets are in the Supplemental Trust Account; provided, however, that if the Trustee is required by industry practice to make such advance or permit such an overdraft, such advance or overdraft shall be deemed a loan by the Trustee to the Grantor, which loan shall be payable on demand and will continue to be subject to servicing and custodial agreements in effect on shall bear interest at the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”)Trustee’s customary rate for similar loans. The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement be solely responsible for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none repayment of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of loan and any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsinterest thereon.
Appears in 1 contract
Samples: Supplemental Trust Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to The Trustee shall receive Assets and hold the Trust Account, the Assets in a safe place;
(b) The Trustee shall determine that such Asset is the Assets are in such a form that, to that the extent practicable, the Beneficiary whenever necessary mayBeneficiary, or the Trustee upon on direction by of the Beneficiary willBeneficiary, may negotiate such Asset whenever necessary, without consent or signature from the Grantor or any other person or entity other than the Trustee in accordance with the terms of this Trust Agreement.entity;
(bc) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary to any provision a statement of law. It is understood all Assets in the Trust Account on its inception and agreed that following the Trustee’s duties are solely those set forth herein and that the end of each month;
(d) The Trustee shall have no duty notify the Grantor and the Beneficiary, within 10 days, of any deposits to take any other action unless specifically agreed to by or withdrawals from the Trustee in writing. Without limiting the generality of the foregoing, the Trust Account;
(e) The Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to hold the purchase, retention or sale of Assets with respect to in the Trust Account;
(f) The Trustee may deposit any Assets in the Trust Account in a book-entry account maintained at the appropriate Federal Reserve Bank or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cg) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dh) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, excerpt transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gi) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic mediamedia other than e-mail, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Such instructions may also be in a tested communication or in a communication utilizing access codes effected between electro-mechanical or electronic devices. The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hj) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be charged with knowledge of any document, instrument or agreement, other than this Agreement. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ik) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of lawlaw or, following written advice from counsel, expose the Trustee to personal liability.
(jl) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(km) The invasion of the trust corpus to pay compensation to, or reimburse the expense of, the Trustee is hereby prohibited.
(n) The Trustee shall notify deliver to the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives written notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor termination as and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencywhen required under Section 10(b).
(lo) Notwithstanding any provision of this Agreement to Except as may arise from the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its Trustee's own negligence, negligence or willful misconduct or lack of good faith in performing faith, the Trustee shall be without liability for any loss, liability, claim or expense resulting from or caused by events or circumstances beyond the reasonable control of the Trustee, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities markets, power or other mechanical or technological failures or interruptions, or computer viruses or communications disruptions, work stoppages, natural disasters or other similar events or acts, delays or inability to perform its duties under this Trust Agreementdue to any disorder in market infrastructure with respect to any particular security or changes to any provision of any present or future law or regulation or order of the United States of America, or any state thereof, or any other country, or political subdivision thereof or any court of competent jurisdiction.
(p) The Trustee, in incurring any debt, liability or obligation, or in taking or omitting to take any action for or in connection with the Trust, is and shall be deemed to be acting solely as a trustee, and not in an individual capacity. The Trustee shall exercise the standard of care with respect assume no responsibility and shall not be held to the Assets that a professional trusteeany personal liability whatsoever in tort, engaged in the banking contract, or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable otherwise for physical loss of any action taken or damage omitted pursuant to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearancethis Agreement. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of that the Grantor or Beneficiary, promptly replace such Assets the Beneficiary enters into any agreement or arrangement of any kind with like kind and quality together with, any third party with respect to all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer any part of the Assets to obtain reissue of such AssetsTrust Account, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or the Beneficiary. The provisions , as appropriate, shall ensure that the agreement or arrangement shall pose no risk of this paragraph shall not affect the burden of proof under applicable law with respect personal liability to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careTrustee.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter (the “Monthly Statement”).The Monthly Statement shall list (i) all of the Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Asset that has no CUSIP number, and (ii) any transfers of Assets to or from the Trust Account during such calendar month, including all purchases and sales of Assets during such calendar month. The Monthly Statement shall be given as soon as practicable, but in no event later than ten (10) Business Days after the end of the calendar month most recently concluded. At the Grantor’s or the Beneficiary’s request, the Trustee may provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager by granting access to the Trustee’s automated data system affording on-line access to trust accounts information. The Monthly Statement under this Section 7(a) shall be deemed given by the Trustee to the Grantor and the Beneficiary to the extent that the Grantor and the Beneficiary, as the case may be, had previously requested and had been given access to the Trustee’s automated data system affording on-line access to trust accounts information and such information is posted by the Trustee on such system within such ten (10) Business Day period.
(b) Before accepting any Asset asset for deposit to the Trust Account, the Trustee shall determine that such Asset asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary willmay, negotiate such Asset asset without consent or signature from the Grantor or any person other Person.
(c) The Trustee shall notify the Grantor and the Beneficiary by Electronic Methods, within ten (10) days, of any deposits to or entity other than withdrawals from the Trust Account.
(d) All Assets shall be safely held by the Trustee in its office in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Trust Account (a “Book-Entry Asset”) through the book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a “Depository”). A Book-Entry Asset may be held in the name of a nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees or independent auditors to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) The Trustee is authorized to rely conclusively upon all Communications (including, without limitation, Investment Orders, Withdrawal Notices and Termination Notices) given by officers, agents and/or employees named in letters and incumbency certificates furnished to the Trustee from time to time by the Grantor, the Investment Manager or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor, the Investment Manager or the Beneficiary (collectively “Instructions”), including Instructions given by letter, facsimile transmission or Electronic Methods, if the Trustee reasonably believes such Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith without fraud, negligence or willful misconduct on such Instructions. The Trustee shall not incur any liability in executing Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the individual(s) named therein or (ii) notice from any officer, agent or employee of the Grantor, the Investment Manager or the Beneficiary named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Agreement, as it may from time to time be amended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Agreement against the Trustee. The Trustee shall be liable only for its own fraud, negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Trust AgreementAgreement from the Grantor or the Beneficiary or for any consequential, punitive or special damages.
(bi) No provision of this Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Assets in the Trust Account and for compliance with all provisions of this Agreement, whether or not the Assets are in the Trustee’s possession.
(j) The Trustee may confer with a nationally recognized outside law firm of its selection in relation to matters arising under this Agreement and shall, upon demand, be indemnified and held harmless by the Grantor from and against any and all losses incurred by the Trustee hereunder for any actions taken, omitted or suffered by it in connection with this Agreement or under any transaction contemplated hereby without any lack of good faith, fraud, negligence or willful misconduct on the part of the Trustee and in accordance with the written advice or opinion of such counsel. The written opinion of such law firm shall be full and complete authority and protection for the Trustee with respect to any action taken, omitted or suffered by it in good faith and in accordance with such written advice or opinion of such law firm.
(k) The parties hereto acknowledge that nothing in this Agreement shall obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(l) Except as set forth in Section 7(d), the Trustee shall not be responsible for the existence, genuineness or value of any of the Assets or for the validity, perfection, priority or enforceability of any liens or security interest in any of the Assets, 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 fraud, negligence, bad faith or willful misconduct on the part of the Trustee, for the validity of title to the Assets, for insuring the Assets or for the payment of taxes, charges, assessments or liens upon the Assets.
(m) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee, including, but not limited to, any act or provision of any present or future law or regulation or Governmental Authority, any act of God or war or terrorism, accidents, labor disputes, loss or malfunction of utilities or computer software or hardware, or the unavailability of the Federal Reserve Bank wire or other wire or communication facility, so long as the Trustee maintains and updates from time to time business continuation and disaster recovery procedures that it determines meet the standards of the banking industry.
(n) The Trustee is authorized to disclose information concerning the Trust Account and Assets to its Affiliates and other providers of services as may be necessary in connection with the administration of the Assets or performance of this Agreement (including, by way of example and not by way of limitation, attorneys and accountants for the Trustee).
(o) The Trustee shall in no way be responsible for determining the amount of Assets required to be deposited, or to monitor whether or not the Assets at any time are or continue to be Eligible Assets or have been invested in accordance with the Investment Guidelines or to determine independently the prices or market value of any Assets. The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that provided that, in cases where the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any has employed such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiaryan agent, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors have selected and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes retained such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s agent with reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility liability for any release of Assets made by it at the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any direction of the AssetsBeneficiary or the Grantor provided in accordance with the terms hereof.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset be a bank which is in such form thata member of the Federal Reserve System of the United States of America or a New York State chartered bank or trust company and shall not be a parent, to the extent practicable, the Beneficiary whenever necessary may, subsidiary or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from affiliate of the Grantor or any person the Beneficiary.
(b) The Trustee shall be liable for its own negligence, willful misconduct or entity other than lack of good faith arising out of or in connection with the Trustee performance of its obligations in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall notify the Grantor and the Beneficiary in writing promptly, but in no event more than ten (10) calendar days, following each deposit into, or withdrawal from, the Regulation 114 Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice or Transfer Notice.
(d) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and or the Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Regulation 114 Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in willful misconduct or acted in bad with a lack of good faith in the selection of any such person or entity.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.. NY01/ 7269185.5
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Regulation 114 Trust Account upon the inception of the Regulation 114 Trust Account and at regular intervals no less frequently than at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Regulation 114 Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Regulation 114 Trust Account or the Assets. Any out-of-pocket expenses incurred by the Trustee in relation to any such audit shall be reimbursed by the Grantor and/or the Beneficiary, as the case may be.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and Agreement. The opinion of said counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such said counsel.
(k) The Trustee shall notify , other than with respect to the Grantor and Beneficiary in writing withdrawal of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In Assets by the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding The Trustee may maintain the Assets in book-entry form with, and utilize the services of, any provision Federal Reserve Bank, The Depository Trust Company or similar such depositories ("Central Depositories") as appropriate. Assets may be held in the name of this Agreement to a nominee maintained by the contrary, the Trustee or any Central Depository.
(m) The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Regulation 114 Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under NY01/ 7269185.5 this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)) selected by it, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In Notwithstanding the event foregoing, the Trustee shall not be responsible for loss of loss or damage to the Assets under the careheld in Central Depositories, custodyincluding but not limited to loss due to fire, possession burglary, robbery, theft or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caremysterious disappearance.
(mn) Whenever in the administration of the Regulation 114 Trust Account created by this Trust Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of Grantor and/or Beneficiary, as appropriate, and delivered to the Trustee and said statement or certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof.
(o) The Trustee shall execute and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for the existence, genuineness any act or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)omission, or for the compliance of the Assets with any lawssolvency, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument such agent or noticebroker, including any financing unless in the case of agent(s), such agent(s) is selected by the Trustee, or continuation statement or any tax or securities formin the case of brokers, at any time in any public office or elsewhere for such broker is negligently selected by the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsTrustee.
(np) The Parties acknowledge and agree that certain Trustee is not required to make advances of cash, securities or any other property on behalf of the Regulation 114 Trust Account, or permit overdrafts in the Regulation 114 Trust Account in connection with the acquisition or disposition of Assets are in the Regulation 114 Trust Account; provided, however, that if the Trustee is required by industry practice to make such advance or permit such an overdraft, such advance or overdraft shall be deemed a loan by the Trustee to the Grantor, which loan shall be payable on demand and will continue to be subject to servicing and custodial agreements in effect on shall bear interest at the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”)Trustee’s customary rate for similar loans. The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement be solely responsible for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none repayment of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of loan and any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsinterest thereon.
Appears in 1 contract
Samples: Regulation 114 Trust Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at least the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given furnished to the Trustee from time to time by officers of the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for hereunder with respect to any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Acquisition Agreement (Gainsco Inc)
Additional Rights and Duties of the Trustee. (a) The Trustee shall be not be liable except for its own negligence, willful misconduct or lack of good faith arising out of or in connection with the performance of its obligations in accordance with the provisions of this Trust Agreement.
(b) The Trustee shall notify the Grantor and the Beneficiary in writing within 10 days following each deposit into, or withdrawal from, the Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice.
(c) Before accepting any Asset for deposit to into the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary willmay, negotiate such Asset without consent or signature from the Grantor or any person or entity Person other than the Trustee in accordance with the terms of this Trust Agreement.
(bd) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee may hold its interest in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment centralized National Book-Entry System of principal the Federal Reserve or interest has occurred or to in depositories such as the Depository Trust Company. Assets may be responsible for held in the consequences name of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by officers of designated in writing by the Grantor or and the Beneficiary Beneficiary, respectively, in accordance with the terms of this Trust Agreement and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, letter or facsimile transmission or electronic mediatransmission, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party Party or partiesParties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate, which may be updated from time to time.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify , other than with respect to withdrawals of Assets by the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding any provision of this Agreement to the contrary, the The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering establish the Trust Account (the "Trust Account") that shall be maintained in accordance with the provisions name of this Trust Agreement and (ii) its own negligencethe Trustee, willful misconduct or lack of good faith in performing its duties as trustee under this Trust Agreement. Upon the receipt by the Trustee of Trust Assets in the form of cash, the Trustee shall deposit such cash in the Trust Account, to be held for the benefit of the Beneficiary, until such time as such cash is invested in Eligible Securities.
(m) The Trustee shall exercise invest and reinvest moneys on deposit in the standard of care with respect Trust Account at any time in Eligible Assets as directed in writing by the Grantor, and shall maintain such investments in the Trust Account pursuant to the Assets that a professional trusteeterms of this Trust Agreement.
(n) Anything in this Agreement to the contrary notwithstanding, engaged in no event shall the banking Trustee, be liable under or trust company industryin connection with this Agreement for indirect, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss special, incidental, punitive or consequential losses or damages of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)any kind whatsoever, including but not limited to loss due to firelost profits, burglarywhether or not foreseeable, robbery, theft or mysterious disappearance. In even if the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand has been advised of the Grantor or Beneficiary, promptly replace such Assets with like kind possibility thereof and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer regardless of the Assets to obtain reissue form of action in which such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caredamages are sought.
(mo) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 gross negligence, bad faith or willful misconduct on the part of the Trustee, for the validity of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterthereafter (the “Monthly Statement”). The statement Monthly Statement shall include a description list (i) all of the Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Asset that has no CUSIP number and (ii) any transfers of Assets to or from the Trust Account during such calendar month, including all purchases and sales of Assets during such calendar month. The Monthly Statement shall be given as soon as practicable, but in no event later than ten (10) Business Days after the end of each calendar month. In addition, the Trustee shall provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager of the Assets in the Trust Account by granting access to the Trustee’s automated data system affording on-line access to trust account information.
(b) Before accepting any asset for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement.
(c) The Trustee shall notify the Grantor and the Beneficiary, within ten (10) days, of any deposits to or withdrawals from the Trust Account.
(d) All Assets shall be delivered within five held in a safe place by the Trustee in its office in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Trust Account (5a “Book-Entry Asset”) business days following through the end book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a “Depository”). A Book-Entry Asset may be held in the name of such calendar montha nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own fraud, negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, or (ii) for any consequential, punitive or special damages.
(ih) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Assets in the Trust Account and for compliance with all provisions of this Agreement, whether or not the Assets are in the Trustee’s possession.
(ji) The Trustee may confer with counsel a nationally recognized outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsellaw firm.
(j) The parties hereto acknowledge that nothing in this Agreement shall require the Trustee to risk or expend its own funds in performing its obligations under this Agreement or obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any instructions, including, without limitation, any Investment Order.
(k) The Trustee shall notify the Grantor and Beneficiary in writing hereby waives any right of any payment default occurring counterclaim, banker’s lien, liens or perfection rights as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care securities intermediary with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset be a bank which is in such form thata member of the Federal Reserve System of the United States of America or a New York State chartered bank or trust company and shall not be a parent, to the extent practicable, the Beneficiary whenever necessary may, subsidiary or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from affiliate of the Grantor or any person the Beneficiary.
(b) The Trustee shall be liable for its own negligence, willful misconduct or entity other than lack of good faith arising out of or in connection with the Trustee performance of its obligations in accordance with the terms of this Supplemental Trust Agreement.
(bc) The Trustee shall notify the Grantor and the Beneficiary in writing promptly, but in no event more than ten (10) calendar days, following each deposit into, or withdrawal from, the Supplemental Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice or Transfer Notice.
(d) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and or the Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Supplemental Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in willful misconduct or acted in bad with a lack of good faith in the selection of any such person or entity.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Supplemental Trust Account upon the inception of the Supplemental Trust Account and at regular intervals no less frequently than at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Supplemental Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Supplemental Trust Account or the Assets. Any out-of-pocket expenses incurred by the Trustee in relation to any such audit shall be reimbursed by the Grantor and/or the Beneficiary, as the case may be.
(gh) Unless otherwise provided in this Supplemental Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Supplemental Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Supplemental Trust Agreement against the Trustee.
(ij) No provision of this Supplemental Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Supplemental Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Supplemental Trust Agreement and Agreement. The opinion of said counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such said counsel.
(k) The Trustee shall notify , other than with respect to the Grantor and Beneficiary in writing withdrawal of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In Assets by the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding any provision Except in the case of this Agreement to the contrarySurplus Notes (which shall be maintained by the Trustee in certificated form), the Trustee may maintain the Assets in book-entry form with, and utilize the services of, any Federal Reserve Bank, The Depository Trust Company or similar such depositories ("Central Depositories") as appropriate. Assets may be held in the name of a nominee maintained by the Trustee or any Central Depository.
(m) The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Supplemental Trust Account in accordance with the provisions of this Supplemental Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Supplemental Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)) selected by it, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In Notwithstanding the event foregoing, the Trustee shall not be responsible for loss of loss or damage to the Assets under the careheld in Central Depositories, custodyincluding but not limited to loss due to fire, possession burglary, robbery, theft or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caremysterious disappearance.
(mn) Whenever in the administration of the Supplemental Trust Account created by this Supplemental Trust Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of Grantor and/or Beneficiary, as appropriate, and delivered to the Trustee and said statement or certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof.
(o) The Trustee shall execute and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for the existence, genuineness any act or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)omission, or for the compliance of the Assets with any lawssolvency, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument such agent or noticebroker, including any financing unless in the case of agent(s), such agent(s) is selected by the Trustee, or continuation statement or any tax or securities formin the case of brokers, at any time in any public office or elsewhere for such broker is negligently selected by the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsTrustee.
(np) The Parties acknowledge and agree that certain Trustee is not required to make advances of cash, securities or any other property on behalf of the Supplemental Trust Account, or permit overdrafts in the Supplemental Trust Account in connection with the acquisition or disposition of Assets are in the Supplemental Trust Account; provided, however, that if the Trustee is required by industry practice to make such advance or permit such an overdraft, such advance or overdraft shall be deemed a loan by the Trustee to the Grantor, which loan shall be payable on demand and will continue to be subject to servicing and custodial agreements in effect on shall bear interest at the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”)Trustee’s customary rate for similar loans. The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement be solely responsible for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none repayment of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of loan and any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsinterest thereon.
Appears in 1 contract
Samples: Supplemental Trust Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity Person other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which the Depository Trust Company and the Participants Trust Company. The Trustee shall have no liability whatsoever for the action or inaction of any depositary or for any losses resulting from the maintenance of Eligible Securities with a default depositary. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account at the end of each calendar month, but in no event later than seven (7) business days after the month end, which shall include the market value of such Assets as of the end of the calendar month. The statement shall be provided in an electronic format reasonably accessible to the Company and the Grantor.
(f) Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be he genuine and to have been signed, sent or presented by the proper party or parties. In , in the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions from (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact fact, or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice Anything in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrarycontrary notwithstanding, in no event shall the Trustee shall Trustee, be liable under or in connection with this Agreement for (i) subject to Section 7(n)indirect, the safekeeping special, incidental, punitive or consequential losses or damages of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)any kind whatsoever, including but not limited to loss due to firelost profits, burglarywhether or not foreseeable, robberyeven if the Trustee, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand has been advised of the Grantor or Beneficiary, promptly replace such Assets with like kind possibility thereof and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer regardless of the Assets to obtain reissue form of action in which such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caredamages are sought.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n1) The Parties acknowledge and agree that certain Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee, including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, accidents, labor disputes, loss or malfunction of utilities or computer software or hardware, or the unavailability of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended Federal Reserve Bank wire or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action telex or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession other wire or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscommunication facility.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for the deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account as to which a default in the payment centralized National Book-Entry System of principal the Federal Reserve or interest has occurred or to in depositories such as the Depository Trust Company. Assets may be responsible for held in the consequences name of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset be a bank which is in such form thata member of the Federal Reserve System of the United States of America or a New York State chartered bank or trust company and shall not be a parent, to the extent practicable, the Beneficiary whenever necessary may, subsidiary or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from affiliate of the Grantor or any person the Beneficiary.
(b) The Trustee shall be liable for its own negligence, willful misconduct or entity other than lack of good faith arising out of or in connection with the Trustee performance of its obligations in accordance with the terms of this Supplemental Trust Agreement.
(bc) The Trustee shall notify the Grantor and the Beneficiary in writing promptly, but in no event more than ten (10) calendar days, following each deposit into, or withdrawal from, the Supplemental Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice or Transfer Notice.
(d) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and or the Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Supplemental Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in willful misconduct or acted in bad with a lack of good faith in the selection of any such person or entity.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Supplemental Trust Account upon the inception of the Supplemental Trust Account and at regular intervals no less frequently than at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Supplemental Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Supplemental Trust Account or the Assets. Any out-of-pocket expenses incurred by the Trustee in relation to any such audit shall be reimbursed by the Grantor and/or the Beneficiary, as the case may be.
(gh) Unless otherwise provided in this Supplemental Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Supplemental Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Supplemental Trust Agreement against the Trustee.
(ij) No provision of this Supplemental Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Supplemental Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Supplemental Trust Agreement and Agreement. The opinion of said counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such said counsel.
(k) The Trustee shall notify , other than with respect to the Grantor and Beneficiary in writing withdrawal of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In Assets by the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding any provision Except in the case of this Agreement to the contrarySurplus Notes (which shall be maintained by the Trustee in certificated form), the Trustee may maintain the Assets in book-entry form with, and utilize the services of, any Federal Reserve Bank, The Depository Trust Company or similar such depositories ("Central Depositories") as appropriate. Assets may be held in the name of a nominee maintained by the Trustee or any Central Depository.
(m) The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Supplemental Trust Account in accordance with the provisions of this Supplemental Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Supplemental Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)) selected by it, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In Notwithstanding the event foregoing, the Trustee shall not be responsible for loss of loss or damage to Assets held in Central Depositories, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. (n) Whenever in the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand administration of the Supplemental Trust Account created by this Supplemental Trust Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of Grantor or and/or Beneficiary, promptly replace such Assets with like kind as appropriate, and quality together with, all rights and privileges pertaining delivered to the Assets (by among other methods, posting appropriate security Trustee and said statement or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable certificate shall be full warrant to the GrantorTrustee for any action taken, deliver cash equivalent to suffered or omitted by it on the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of carefaith thereof.
(mo) The Trustee shall execute and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for the existence, genuineness any act or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)omission, or for the compliance of the Assets with any lawssolvency, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument such agent or noticebroker, including any financing unless in the case of agent(s), such agent(s) is selected by the Trustee, or continuation statement or any tax or securities formin the case of brokers, at any time in any public office or elsewhere for such broker is negligently selected by the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsTrustee.
(np) The Parties acknowledge and agree that certain Trustee is not required to make advances of cash, securities or any other property on behalf of the Supplemental Trust Account, or permit overdrafts in the Supplemental Trust Account in connection with the acquisition or disposition of Assets are in the Supplemental Trust Account; provided, however, that if the Trustee is required by industry practice to make such advance or permit such an overdraft, such advance or overdraft shall be deemed a loan by the Trustee to the Grantor, which loan shall be payable on demand and will continue to be subject to servicing and custodial agreements in effect on shall bear interest at the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”)Trustee’s customary rate for similar loans. The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement be solely responsible for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none repayment of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of loan and any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsinterest thereon.
Appears in 1 contract
Samples: Supplemental Trust Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset is receive assets and hold the assets in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.a safe place;
(b) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary a statement of all Assets in the Trust Account on its inception at the end of each calendar quarter;
(c) The Trustee shall notify the Grantor and the Beneficiary, within 10 days, of any deposits to any provision of law. It is understood and agreed that or withdrawals from the trust account;
(d) The Trustee shall hold the Assets in the Trust Account at the Trustee’s duties are solely those set forth herein and that 's office in the United States;
(e) The Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of [ ] or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cf) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dg) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(kl) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any invasion of the Assetstrust corpus to pay compensation to, or reimburse the expense of the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careis hereby prohibited.
(m) The Trustee shall not be responsible for deliver to the existence, genuineness or value Beneficiary written notice of any termination at least 30 days before termination of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsAccount.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Trust Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterquarter thereafter (the “Quarterly Statement”). The statement Quarterly Statement shall include a description list (i) all of the Trust Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Trust Asset that has no CUSIP number and (ii) any transfers of Trust Assets to or from the Trust Account during such calendar quarter, including all purchases and sales of Trust Assets during such calendar quarter. The Quarterly Statement shall be given as soon as practicable, but in no event later than ten (10) days after the end of each calendar quarter. In addition, the Trustee shall provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager of the Trust Assets in the Trust Account by granting access to the Trustee’s automated data system affording on-line access to trust account information. The Trustee will be deemed to have delivered the accountings of all Trust Assets in the Trust Account if such accounting is available on one or more of the Trustee’s automated systems affording on-line access to trust account information.
(b) Before accepting any asset (other than an Equity Investment or Eligible Derivative) for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement. Before accepting any Equity Investment or Eligible Derivative for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Trustee upon written direction by the Beneficiary may transfer and assign to the Beneficiary such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement.
(c) The Trustee shall notify the Grantor and the Beneficiary, within three (3) Business Days, of any deposits to or withdrawals from the Trust Account.
(d) All Trust Assets shall be delivered within five held in a safe place by the Trustee in its office in the United States, except that the Trustee may hold any Trust Asset that is in book- entry form as of the date it is credited to the Trust Account (5a “Book-Entry Asset”) business days following through the end book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a “Depository”). A Book-Entry Asset may be held in the name of such calendar montha nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Trust Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own fraud, negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable for any consequential, punitive or special damages.
(h) The Trustee shall be protected and held harmless and indemnified by the other parties hereto for any loss, liability or damage for following any statement, notice, resolution, request, consent, order, certificate, report, appraisal, opinion, letter or other paper or document reasonably believed by the Trustee to be genuine (including that it conforms on its face to the requirements of this Agreement) and to have been signed, sent or presented by Grantor and/or Beneficiary. All notices to the Trustee (unless otherwise provided therein) shall be deemed to be effective when received by the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Trust Assets in the Trust Account and for compliance with all provisions of this Agreement, whether or not the Trust Assets are in the Trustee’s possession.
(j) The Trustee may confer with counsel a nationally recognized outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsellaw firm.
(k) The Parties acknowledge that nothing in this Agreement shall require the Trustee to risk or expend its own funds in performing its obligations under this Agreement or obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any instructions, including, without limitation, any Investment Order provided, however, that if the Trustee chooses to make such advance, such advance shall be deemed an extension of credit by the Trustee to Grantor, which extension of credit shall be payable on demand and shall bear interest at the Trustee’s customary rate for similar extensions of credit. Grantor will be solely responsible for repayment of such extension of credit and any interest thereon. The Trustee shall notify not permit any overdrafts in the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyTrust Account.
(l) Notwithstanding The Trustee hereby waives any provision right of this Agreement counterclaim, banker’s lien, liens or perfection rights as securities intermediary with respect to the contraryTrust Assets and the Trust Account.
(m) It is herein acknowledged that, in accepting a deposit of any Mortgage Loan or Participation Asset into the Trust Account, the Trustee shall be liable under no duty or obligation to inspect, review or examine the actual content or substance of any related Loan Assignment Documents, any other loan document, security document or any other related document, instrument or agreement or to determine that they are genuine, enforceable, or appropriate for (i) subject the represented purpose or that they are other than what they purport to Section 7(n)be on their face. In no event shall the Trustee be responsible for the preparation of any Loan Assignment Documents, any other loan document, security document or any other instruments, agreements or documents relating to the safekeeping Mortgage Loan or Participation Asset or required for the deposit of the Assets and administering Mortgage Loan or Participation Asset into the Trust Account or for the expenses of such preparation or any other costs related thereto, including any filing fees therefor.
(n) It is herein acknowledged that, in accordance with accepting a deposit of any Equity Investment, Eligible Derivative or Private Placement into the provisions Trust Account, the Trustee shall be under no duty or obligation to inspect, review or examine the actual content or substance of this any related Other Assignment Documents or to determine that they are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face. In no event shall the Trustee be responsible for the preparation of any Other Assignment Documents or any other instruments, agreements or documents relating to the Equity Investment, Eligible Derivative or Private Placement or required for the deposit of the Equity Investment, Eligible Derivative or Private Placement into the Trust Agreement Account or for the expenses of such preparation or any other costs related thereto, including any filing fees therefor.
(o) The Trustee’s administrative obligations hereunder in respect of the Mortgage Loans, Participation Assets shall be limited to (a) the review of the Loan Assignment Documents as provided in Section 1(g)(ii), (b) the preparation and delivery of Quarterly Statement as provided in Section 6(a), and (iic) its own negligencethe execution of instruments or other documents provided to it, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The and the Trustee shall exercise the standard of care not be required to take any action with respect to any Mortgage Loan, Participation Asset or any Underlying Asset, except at the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand written direction of the Grantor or the Beneficiary, promptly replace such Assets with like kind and quality together withas applicable, all rights and privileges pertaining or as otherwise permitted pursuant to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careAgreement.
(mp) The With respect to any assignment and assumption agreement relating to a Mortgage Loan or Participation Asset, the Trustee is hereby authorized and directed, not in its individual capacity but solely in its capacity as Trustee, to execute and deliver such assignment and assumption agreements presented to the Trustee for execution from time to time. To the extent that, under the assignment and assumption agreements, the Trustee as assignee has undertaken or assumed any obligations or made any representations, warranties or covenants under the Mortgage Loans or Participation Assets, such obligations, representations, warranties or covenants shall not be responsible for the existence, genuineness or value of any those of the AssetsTrustee, for the validity, perfection, priority or enforceability but shall instead be those of the liens in Grantor and the Grantor shall perform or with respect cause to any of the Assetsbe performed all such obligations, for the validity of title to the Assetsrepresentations, for insuring the Assets, for the payment of taxes, charges, assessments warranties or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets covenants.
(other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). q) The Trustee shall have no responsibility for to the recording, filing extent that there is a failure in the withdrawal of a Mortgage Loan or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time Participation Asset specified in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any a Beneficiary Withdrawal Notice by Beneficiary as a result of the Grantor’s or applicable Investment Manager’s or the Beneficiary’s sale or transfer of such Mortgage Loan or Participation Assets.
(nr) The Parties Grantor and the Beneficiary hereby acknowledge and agree that certain the Trustee shall not have any obligations relating to any future funding commitments in respect of the Trust Assets are and will continue to be subject to servicing and custodial agreements in effect on (including, for the date hereof (as amended or otherwise modified from time to time, including any replacements thereofavoidance of doubt, the “Servicing/Custodial Agreements”Mortgage Loans and Participation Assets). .
(s) The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial AgreementsMortgage Loans or Participation Assets) taken pursuant to such agreements, including with respect to any of the Assets Mortgage Loan or Participation Asset at any time during which such Assets are Mortgage Loan or Participation Asset is under the care, custody, possession or control of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) or any of their respective other depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons other entities or persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) or as a result of the Assets such Mortgage Loan or Participation Asset being subject to the Servicing/Custodial Agreements any Servicing Agreement, and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to any Servicing Agreement or any other agreement (related to the Servicing/Custodial Agreements Mortgage Loans or Participation Assets) that cause such failure or as a result of the Assets being subject obligations under any Servicing Agreement or any other agreement (related to the Servicing/Custodial AgreementsMortgage Loans or Participation Assets). In no event will the Trustee be required to perform or assume any duties of any party under any Servicing Agreement.
(t) The Trustee shall, at the written direction of the Grantor, settle trades for Private Placements with Trust Assets held in the Trust Account pending receipt of the original evidence of indebtedness of such Private Placements in accordance with the directions from the Grantor (which original evidence of indebtedness may not be delivered for a period following the Trustee’s withdrawal of such Trust Assets); provided that the foregoing shall not relieve the Grantor of its obligations to comply with Section 1(b). Any investment directed by the Grantor or its Investment Manager will constitute a certification by the Grantor to the Trustee that the settlement procedures set forth in the applicable investment documentation is acceptable to the Grantor and directed hereunder, upon which direction the Grantor and the Beneficiary agree Trustee may conclusively rely.
Appears in 1 contract
Samples: Trust Agreement
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the [page break] Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securitiesassets which comply with any applicable insurance laws.
(d) All Assets shall be held in a safe place by the Trustee at the Trustee’s office in the United States, except that the Trustee may deposit any Assets in the Trust Account in a or in depositories such as the and the . Assets may be held in the name of a nominee maintained by the Trustee or by any such depository.
(e) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee and shall forward such mail to the party to whom it is directed.
(f) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon at the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Grantor or Trustee from time to time by the Beneficiary Grantor, the Grantor’s designated investment manager and the Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact or investment manager prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or investment manager, or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust AgreementAgreement and its Exhibits, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) . The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall not be liable except for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith faith, and in performing its duties under no event shall the Trustee be liable for special, punitive, or consequential losses or damages arising in connection with this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.[page break]
Appears in 1 contract
Samples: Automatic Yrt Agreement (C M Life Variable Life Separate Account I)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the applicable Grantor and the applicable Beneficiary in writing within five days following each deposit to, or withdrawal from, any Trust Account. The Trustee shall provide the Grantors and the Beneficiaries with access to the Trustee’s automated data system affording on-line access to Trust Account information, subject to the Trustee’s requirements for creating accounts on such system. The usage of such system will be deemed to fulfil the Trustee’s notice obligations in this Section 8(a) and Section 8(f), below. Each of the Grantors and the Beneficiaries acknowledges that there are other risks inherent in communicating through the Internet such as the possibility of virus contamination and disruptions in service, and each agrees that the Trustee shall not be responsible for any loss, damage or expense suffered or incurred by any Grantor or any Beneficiary or any person claiming by or through any Grantor or any Beneficiary as a result of the use of such methods, except to the extent that such loss, damage or expense is the direct result of the Trustee’s negligence, willful misconduct or lack of good faith.
(b) Before accepting any Asset for deposit to the any Trust Account, the Trustee shall determine that such Asset is in such form that, to that the extent practicable, the applicable Beneficiary whenever necessary may, or the Trustee upon direction by the such Beneficiary will, negotiate such Asset without consent or signature from the any Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether any Assets are or not continue to be Eligible Securities.
(d) The Trustee may deposit any instructions given by Assets in a Trust Account in a book-entry account maintained at the Grantor and Beneficiary are contrary to any provision Federal Reserve Bank of lawNew York or in depositories such as The Depository Trust Company. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the The Trustee shall have no duty to take liability whatsoever for the action or inaction of any other action unless specifically agreed to depository or for any losses resulting from the maintenance of Eligible Securities with a depository. Assets may be held in the name of a nominee maintained by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the any Grantor or the any Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor Grantors and the Beneficiary Beneficiaries a statement of all Assets Assets, and the Market Value thereof, in the Trust Account upon the inception of the Trust Account and Accounts at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the written request of the applicable Grantor or the applicable Beneficiary, the Trustee shall promptly permit the applicable Grantor or the applicable Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the any Trust Account or the AssetsAssets therein.
(g1) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers Authorized Persons of the Grantor or Grantors, any relevant investment manager of the Beneficiary Grantors, and any Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor Grantors or the any Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes in good faith such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In With respect to any actions to be taken by either Grantor or the absence of negligenceGrantors jointly, the Trustee shall be entitled to rely upon instructions, directions or acknowledgements made by DARAG Bermuda as if it is the sole Grantor hereunder, and each Grantor and each Beneficiary agrees that any instruction, direction or acknowledgement required or permitted to be made by DARAG Guernsey hereunder may be made or given by DARAG Bermuda with the same force and effect as if it had been made or given by DARAG Guernsey. The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith and without negligence or willful misconduct on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer or other representative of the Grantor Grantors or any Beneficiary named in an incumbency certificate delivered hereunder prior to receipt by the BeneficiaryTrustee of a more current certificate. Each of the Grantors and the Beneficiaries acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the Trustee, and that there may be more secure methods of transmitting instructions than the method selected by the sender. Each of the Grantors and the Beneficiaries agrees that the security procedures, if any, to be followed in connection with a transmission of instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(h2) The duties and obligations Each of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, Grantors and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require Beneficiaries hereby authorizes the Trustee to take any action whichrely upon and comply with instructions and directions, in including funds transfer instructions, sent by S.W.I.F.T, e-mail, facsimile and other similar secure electronic transmissions containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee’s reasonable judgment, would result or another method or system specified by the Trustee as available for use in any violation of this Trust Agreement or any provision of law.
connection with its services hereunder (j“Electronic Methods”) The by persons believed by the Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith to be authorized to give instructions and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any directions on behalf of the AssetsGrantors and/or the Beneficiaries. Except as set forth below with respect to funds transfers, the Trustee shall inform have no duty or obligation to verify or confirm that the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of person who sent such delinquency.
(l) Notwithstanding any provision of this Agreement instructions or directions is, in fact, a person authorized to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping give instructions or directions on behalf of the Assets and administering Grantors and/or the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets Beneficiaries (other than this Trust Agreementto verify that the signature on a facsimile is the signature of a person authorized to give instructions and directions on behalf of such Party), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action losses, liabilities, costs or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession expenses incurred or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance sustained by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by Grantors and/or the actions or omissions of any of the parties to the Servicing/Custodial Agreements or Beneficiaries as a result of such reliance in good faith upon or compliance with such instructions or directions. Each of the Assets being subject Grantors and the Beneficiaries agrees to assume all risks arising out of the use of Electronic Methods to submit instructions and directions to the Servicing/Custodial Agreements Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(3) With respect to any “funds transfer,” as defined in Article 4-A of the Uniform Commercial Code, the following security procedure will apply: a payment instruction of a Grantor or any Beneficiary, as the case may be, is to include the name and (iiiin the case of a facsimile) signature of the person initiating the funds transfer request. If the name is listed as an Authorized Person on the relevant account, the Trustee will confirm the instructions by telephone call to any person listed as an Authorized Person on the account, who may be the same person who initiated the instruction. When calling back, the Trustee will request from the staff member of the applicable Grantor or the applicable Beneficiary, as the case may be, his or her name. If the name is listed in the Trustee’s records as an Authorized Person, the Trustee will confirm the instructions with respect to amount, names and numbers of accounts to be charged or credited and other relevant reference information. Where the Agreement contemplates joint payment instructions from a Grantor and any Beneficiary, the Trustee shall have no liability call back both the applicable Grantor and any such Beneficiary. Each of the Grantors and Beneficiaries acknowledges that the Trustee has offered such Grantor and Beneficiary other security procedures that are more secure and are commercially reasonable for such Grantor and Beneficiary, and that such Grantor and Beneficiary has nonetheless chosen the procedure described in this paragraph. Each of the Grantors and the Beneficiaries agrees to be bound by any payment order issued in its name, whether or not authorized, that is accepted by the Trustee in accordance with the above procedures. When instructed to credit or pay a party by both name and a unique numeric or alpha-numeric identifier (e.g. ABA number or account number), the Trustee, and any other bank participating in the funds transfer, may rely solely on the unique identifier, even if it identifies a party different than the party named. This applies to beneficiaries as well as any intermediary bank. Each of the Grantors and Beneficiaries agrees to be bound by the rules of any funds transfer network used in connection with any payment order accepted by the Trustee hereunder. The Trustee shall not be obliged to make any payment or otherwise to act on any instruction notified to it under this Trust Agreement if it is unable to validate the authenticity of the request by telephoning an Authorized Person who has not executed the relevant request or instruction of the applicable Grantor or the relevant Beneficiary, as a result the case may be. The Trustee will make any payment or otherwise act on any instruction provided by an Authorized Person of the applicable Grantor or the relevant Beneficiary, as the case may be, within three (3) Business Days after the Trustee’s failure verification of such instructions as set forth above. A “Business Day” shall mean any day (other than a Saturday or Sunday) on which banks are open for business in New York, New York and Xxxxxxxx, Bermuda. Notwithstanding any revocation, cancellation or amendment of this authorization, any action taken by the Trustee pursuant to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties authorization prior to the Servicing/Custodial Agreements Trustee’s actual receipt and acknowledgement of a notice of revocation, cancellation or as a result of the Assets being subject to the Servicing/Custodial Agreementsamendment shall not be affected by such notice.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether any Assets are or not any instructions given by the Grantor and Beneficiary are contrary continue to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the be Eligible Securities.
(d) The Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which the Depository Trust Company and the Participants Trust Company. The Trustee shall have no liability whatsoever for the action or inaction of any depository or for any losses resulting from the maintenance of Eligible Securities with a default depository. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereaftermonth. The statement shall include a description of Such notification and the Assets notifications required in the Trust Account Sections 1(c) and 6(a) shall be delivered within five (5) business days following deemed satisfied by the end granting of such calendar month.access to the Trustee’s online reporting system to the Grantor and the Beneficiary and the Trustee shall bear no liability for notifications to be provided in any other manner
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g1) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers Authorized Persons of the Grantor or Grantor, any relevant investment manager of the Beneficiary Grantor, and the Beneficiary; respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt acknowledges and agrees that it is fully informed of notice the protections and risks associated with the various methods of such delinquency.
(l) Notwithstanding any provision of this Agreement transmitting instructions to the contraryTrustee, and that there may be more secure methods of transmitting instructions than the Trustee shall be liable for (i) subject to Section 7(n), method selected by the safekeeping sender. Each of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree agrees that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreementssecurity procedures, including with respect to any of the Assets at any time during which such Assets are under the careif any, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees followed in connection with a transmission of the Trustee), (ii) the performance by the Trustee instructions provide to it a commercially reasonable degree of any protection in light of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements particular needs and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscircumstances.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for The Trustee shall notify the Grantor and the Beneficiary in writing within ten (10) calendar days following each deposit to to, or withdrawal from, the Trust Account, .
(b) The Trustee shall not accept any Assets (other than cash) for deposit into the Trust Account unless the Trustee shall determine determines that such Asset is Assets are in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate any such Asset Assets, without consent or signature from the Grantor or any person other Person or entity other than the Trustee in accordance with the terms of this Trust Agreementhereof. Any Assets received by the Trustee which, are not in such proper negotiable form shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether that any Assets (other than cash) in the Trust Account are or not any instructions given continue to be Permitted Investments.
(d) All Assets shall be held in a safe place by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that Trustee at the Trustee’s duties are solely those set forth herein and office in the United States, except that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book entry account maintained at the Federal Reserve Bank of New York or in reputable depositories such as to which the Depository Trust Company. The Trustee shall have no liability whatsoever for the action or inaction of any depositary or for any losses resulting from the maintenance of Assets with a default depositary. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to by any such depository. Assets may be held in the Assets except to the extent that name of a nominee maintained by the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon at the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities or regulators to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-attorneys in fact acting under written authority furnished to the Trustee by the Grantor Grantor, the Investment Manager or the Beneficiary, includingas applicable, without limitation, including instructions given by letter, facsimile transmission transmission, or electronic mediamedia pursuant to Section 17 of this Agreement, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party Party or partiesParties or the Investment Manager. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-attorney in fact or Investment Manager prior to receipt by it of notice of the revocation of the written authority of the attorney-in-attorney in fact or Investment Manager, or (ii) from any officer of the Grantor Grantor, the Investment Manager or the BeneficiaryBeneficiary named in the incumbency certificate delivered hereunder prior to receipt by it of a more current certificate. Each of the Grantor and the Beneficiary acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the Trustee, and that there may be more secure methods of transmitting instructions than the method selected by the sender. Each of the Grantor and the Beneficiary agrees that the security procedures, if any, to be followed in connection with a transmission of instruction provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith, and in no event shall the Trustee be liable for special, indirect, incidental, punitive, or consequential losses or damages arising in connection with this Agreement of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee, has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or Applicable Law. If any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of third party asserts a delinquency of a timely payment in regard to lien against any of the Assets, the Trustee shall inform promptly notify both the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyclaim. The Trustee may obtain the advice of counsel and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(nl) The Parties acknowledge and agree that certain Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee, including, but not limited to, to any act or provision of any present or future law or regulation or Governmental Entity, terrorism, any act of God or war, accidents, labor disputes, loss or malfunction of utilities or computer software or hardware, or the unavailability of the Assets are and will continue Federal Reserve Bank wire or telex or other wire or communication facility.
(m) Subject to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereofSection 8(a), the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee Trust shall have no liability under this Trust Agreement for any action not be required to risk or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of expend its own funds in performing its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAgreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Montpelier Re Holdings LTD)
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(d) The Trustee may deposit any Assets in the Trust Account in a book entry account maintained at the Federal Reserve Bank or in depositories such as the Depository Trust Company and the Participants Trust Company. Assets may be held in the name of a nominee maintained by the Trustee or by any such depository.
(e) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(f) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and the Beneficiary Beneficiary; respectively, and by attorneys-in-attorneys in fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-attorney in fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-attorney in fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered under this Agreement prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own gross negligence, willful misconduct or lack of good faith.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary Anything in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrarycontrary notwithstanding, in no event shall the Trustee shall be liable under or in connection with this Agreement for (i) subject to Section 7(n)indirect, the safekeeping special, incidental, punitive or consequential losses or damages of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)any kind whatsoever, including but not limited to loss due to firelost profits, burglarywhether or not foreseeable, robbery, theft or mysterious disappearance. In even if the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand has been advised of the Grantor or Beneficiary, promptly replace such Assets with like kind possibility thereof and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer regardless of the Assets to obtain reissue form of action in which such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caredamages are sought.
(ml) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, whether impaired by operation of law or by reason of any action or omission to act on its part under this Agreement, except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Trustee, for the validity of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(nm) The Parties acknowledge and agree that certain Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under this Agreement by reason of any occurrence beyond the control of Trustee, including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended Federal Reserve Bank wire or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action telex or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession other wire or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscommunication facility.
Appears in 1 contract
Samples: Merger Agreement (Donegal Group Inc)
Additional Rights and Duties of the Trustee. Section 5.1. Except as otherwise provided in Section 2.1(d) hereof, the Trustee shall notify the Grantor and the Beneficiary in writing within ten (a10) days following each deposit to, or withdrawal from, the Trust Account.
Section 5.2. Before accepting any Asset asset for deposit to the Trust Account, the Trustee shall determine that such Asset asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, whenever necessary may negotiate such Asset asset without consent or signature from the Grantor or any person Person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) Section 5.3. The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor receive all Assets and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or cause them to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged held in misconduct or acted in bad faith in the selection of any such person or entitysafekeeping.
(c) Section 5.4. The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) Section 5.5. The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon as of the inception of the Trust Account and at as of the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and Such statements shall be delivered furnished within five (5) business days following after the end of such calendar the month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawSection 5.6. Upon the request of the Grantor or the BeneficiaryBeneficiary and at their sole cost and expense, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.to
(g) Unless Section 5.7. Except as otherwise provided in this Trust AgreementSection 2.1(c) hereof, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party Party or partiesParties. In the absence of negligenceExcept as otherwise provided in Section 2.1(c) hereof, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsela more current certificate.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Reserve Trust Account upon the inception of the Reserve Trust Account and at the end of each calendar month thereafterthereafter (the "Monthly Statement"). The statement Monthly Statement shall include a description list all of the Assets in the Trust Account and shall be delivered within five given as soon as practicable, but in no event later than ten (510) business days following Business Days after the end of the calendar month most recently concluded. The Trustee shall also provide the Grantor and the Beneficiary with access to the Trustee's on-line electronic account reporting system to allow them to view the status of and activities in the Reserve Trust Account.
(b) Before accepting any asset for deposit to the Reserve Trust Account, the Trustee shall determine that such calendar monthasset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person.
(c) The Trustee shall notify the Grantor and the Beneficiary, within ten (10) days, of any deposits to or withdrawals from the Reserve Trust Account. The Trustee will be deemed to have delivered the notices of deposits to or withdrawals from the Reserve Trust Account if such notice is available on one or more of the Trustee's systems to deliver electronic media.
(d) All Assets shall be safely held by the Trustee in its office in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Reserve Trust Account (a "Book-Entry Asset") through the book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a "Depository"). A Book-Entry Asset may be held in the name of a nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Reserve Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s 's normal business hours, hours any books, documents, papers and records relating to the Reserve Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely conclusively upon all instructions Communications (including, without limitation, Investment Orders, Beneficiary Withdrawal Notices, Grantor Withdrawal Notices and Termination Notices) given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the BeneficiaryBeneficiary (collectively "Instructions"), including, without limitation, instructions including Instructions given by letter, facsimile transmission or electronic mail or other electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith without negligence or willful misconduct on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein or (ii) notice from any officer officer, agent or employee of the Grantor or the BeneficiaryBeneficiary named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, or (ii) for any consequential, punitive or special damages.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Assets in the Reserve Trust Account and for compliance with all provisions of this Agreement, whether or not the Assets are in the Trustee's possession.
(j) The Trustee may confer with counsel a nationally recognized outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsellaw firm.
(k) The Trustee parties hereto acknowledge that nothing in this Agreement shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, obligate the Trustee shall inform to extend credit, grant financial accommodation or otherwise advance moneys for the Grantor and the Beneficiary immediately upon Trustee’s receipt purpose of notice of such delinquencymaking any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard hereby waives any right of care counterclaim, banker's lien, liens or perfection rights as securities intermediary with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Reserve Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 1 contract
Samples: Reinsurance Agreement (Hartford Life Insurance Co Separate Account Two Dc Var Ac Ii)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to The Trustee shall receive Assets and hold the Trust Account, the Assets in a safe place;
(b) The Trustee shall determine that such Asset is the Assets are in such a form that, to that the extent practicable, the Beneficiary whenever necessary mayBeneficiary, or the Trustee upon on direction by of the Beneficiary willBeneficiary, may negotiate such Asset whenever necessary, without consent or signature from the Grantor or any other person or entity other than the Trustee in accordance with the terms of this Trust Agreement.entity;
(bc) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary to any provision a statement of law. It is understood all Assets in the Trust Account on its inception and agreed that following the Trustee’s duties are solely those set forth herein and that the end of each month;
(d) The Trustee shall have no duty notify the Grantor and the Beneficiary, within 10 days, of any deposits to take any other action unless specifically agreed to by or withdrawals from the Trustee in writing. Without limiting the generality of the foregoing, the Trust Account;
(e) The Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to hold the purchase, retention or sale of Assets with respect to in the Trust Account;
(f) The Trustee may deposit any Assets in the Trust Account in a book-entry account maintained at the appropriate Federal Reserve Bank or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cg) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dh) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gi) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic mediamedia other than e-mail, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Such instructions may also be in a tested communication or in a communication utilizing access codes effected between electro-mechanical or electronic devices. The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hj) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be charged with knowledge of any document, instrument or agreement, other than this Agreement. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ik) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of lawlaw or, following written advice from counsel, expose the Trustee to personal liability.
(j1) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(km) The invasion of the trust corpus to pay compensation to, or reimburse the expense of, the Trustee is hereby prohibited.
(n) The Trustee shall notify deliver to the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives written notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor termination as and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencywhen required under Section 10(b).
(lo) Notwithstanding any provision of this Agreement to Except as may arise from the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its Trustee's own negligence, negligence or willful misconduct or lack of good faith in performing faith, the Trustee shall be without liability for any loss, liability, claim or expense resulting from or caused by events or circumstances beyond the reasonable control of the Trustee, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities markets, power or other mechanical or technological failures or interruptions, or computer viruses or communications disruptions, work stoppages, natural disasters or other similar events or acts, delays or inability to perform its duties under this Trust Agreementdue to any disorder in market infrastructure with respect to any particular security or changes to any provision of any present or future law or regulation or order of the United States of America, or any state thereof, or any other country, or political subdivision thereof or any court of competent jurisdiction.
(p) The Trustee, in incurring any debt, liability or obligation, or in taking or omitting to take any action for or in connection with the Trust, is and shall be deemed to be acting solely as a trustee, and not in an individual capacity. The Trustee shall exercise the standard of care with respect assume no responsibility and shall not be held to the Assets that a professional trusteeany personal liability whatsoever in tort, engaged in the banking contract, or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable otherwise for physical loss of any action taken or damage omitted pursuant to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearancethis Agreement. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of that the Grantor or Beneficiary, promptly replace such Assets the Beneficiary enters into any agreement or arrangement of any kind with like kind and quality together with, any third party with respect to all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer any part of the Assets to obtain reissue of such AssetsTrust Account, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or the Beneficiary. The provisions , as appropriate, shall ensure that the agreement or arrangement shall pose no risk of this paragraph shall not affect the burden of proof under applicable law with respect personal liability to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careTrustee.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterquarter thereafter (the “Quarterly Statement”). The statement Quarterly Statement shall include a description list (i) all of the Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Asset that has no CUSIP number, and (ii) any transfers of Assets to or from the Trust Account during such calendar quarter, including all purchases and sales of Assets during such calendar quarter. The Quarterly Statement shall be given as soon as practicable, but in no event later than ten (10) Business Days after the end of each calendar quarter. In addition, the Trustee shall provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager of the Assets in the Trust Account. The Quarterly Statement and daily reporting under this Section 6(a) may be given by the Trustee to the Grantor (or its designated Investment Manager) and the Beneficiary to the extent that the Grantor (or such Investment Manager) and the Beneficiary, as the case may be, has been given access to the Trustee’s automated data system affording on-line access to trust account information.
(b) Before accepting any asset for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person other than the Trustee, in accordance with the terms of this Agreement. The Trustee shall have no responsibility whatsoever to determine at any time whether any assets in the Trust Account are or continue to be Eligible Assets or to determine the value of any Eligible Assets.
(c) The Trustee shall notify the Grantor and the Beneficiary in writing (which may be in electronic form) within ten (10) days of any deposits to or withdrawals from the Trust Account.
(d) All Assets in physical form shall be delivered within five held in a safe place by the Trustee in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Trust Account (5a “Book-Entry Asset”) business days following through the end book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a “Depository”). A Book-Entry Asset may be held in the name of such calendar montha nominee maintained by the Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe examine and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, fraud, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, or (ii) for any consequential, punitive or special damages.
(h) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement to the extent caused, directly or indirectly, by natural disasters, fire, strikes or other labor disputes, work stoppages, acts of war or terrorism, general civil unrest, actual or threatened epidemics, disease, act of any government, governmental authority or police or military authority, declared or threatened state of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications or computer systems, or any other similar events beyond its reasonable control. The Trustee will use commercially reasonable efforts to minimize the effect of any such events.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a directed trustee with the responsibility for the safeguarding of Assets in the Trust Account and for compliance with all provisions of this Agreement, whether the Assets are in the Trustee’s physical possession or are held through a Depository.
(j) The Trustee may confer with counsel an outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the such written opinion of such counsellaw firm.
(k) The Trustee parties hereto acknowledge that nothing in this Agreement shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, require the Trustee shall inform to risk or expend its own funds in performing its obligations under this Agreement or obligate the Grantor and Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the Beneficiary immediately upon Trustee’s receipt purpose of notice of such delinquencymaking any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)including, or without limitation, no responsibility for the compliance of the Assets with any laws, including any Environmental Law determining Fair
(as hereinafter defined). m) The Trustee shall have no responsibility for the recording, filing not be required to risk or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time expend its own funds in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of performing its obligations under this Trust Agreement may be delayedAgreement. Notwithstanding the foregoing, limited or otherwise affected by if the actions or omissions of Trustee in its absolute discretion, makes any advance for the benefit of the parties Grantor or the Beneficiary in order to the Servicing/Custodial Agreements purchase, or as a result to make payment on or against delivery of the Assets being subject to the Servicing/Custodial Agreements and (iii) hereunder, the Trustee shall have no liability under this Trust Agreement a continuing security interest in and right of setoff against such Assets and the proceeds thereof, until such time as a result the Trustee is repaid the amount of such advance. If at any time before such repayment the market value of such Assets is less than the amount of the Trustee’s failure advance made to perform any finance their purchase, the Trustee shall have a continuing security interest in and right of its obligations under this setoff against such additional Assets in the Trust Agreement Account as a result is necessary for the repayment of such advance by the actions or omissions of any of the parties Trustee to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsbe fully secured.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) The Trustee shall be liable for its own negligence, willful misconduct or lack of good faith arising out of or in connection with the performance of its obligations in accordance with the provisions of this Agreement.
(b) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from, the Trust Account.
(c) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(bd) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account as to which a default in the payment centralized National Book-Entry System of principal the Federal Reserve or interest has occurred in depositories such as the Depository Trust Company. Assets may be held in the name of a nominee maintained by the Trustee or by any such depository. Nothing contained in any contract between the Trustee and any entity authorized to be responsible for hold Assets in accordance with this paragraph (d) will diminish or otherwise alter the consequences liability of insolvency or the legal inability of any broker, dealer, bank or other agent employed by Trustee to the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entityBeneficiary hereunder.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(gh) Unless otherwise provided Subject to the last sentence in this Section 17, with respect to Assets in the Trust AgreementAccount, the Trustee is authorized to follow and rely upon all instructions given by officers of designated in writing by the Grantor or and the Beneficiary Beneficiary, respectively, in accordance with the terms of this Agreement and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary designated in writing, which may be updated from time to time.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. Without limiting the generality of the foregoing, the Trustee shall have no duties or obligations arising from the Trustee acting as entitlement holder for the benefit of the Beneficiary, including, without limitation, taking any action to perfect a security interest hereunder.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care other than with respect to the withdrawals of Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBeneficiary.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) The Trustee shall notify the Grantor and the Beneficiary in writing within ten days following each deposit to, or withdrawal from the Trust Account.
(b) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or of any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.. [Logo]
(bc) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account in a book-entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cd) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or and Zenith Insurance Company, acting as agent for the Beneficiary Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any an attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for hereunder or any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset be a bank which is in such form thata member of the Federal Reserve System of the United States of America or a New York State chartered bank or trust company and shall not be a parent, to the extent practicable, the Beneficiary whenever necessary may, subsidiary or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from affiliate of the Grantor or any person the Beneficiary.
(b) The Trustee shall be liable for its own negligence, willful misconduct or entity other than lack of good faith arising out of or in connection with the Trustee performance of its obligations in accordance with the terms of this Supplemental Trust Agreement.
(bc) The Trustee shall notify the Grantor and the Beneficiary in writing promptly, but in no event more than ten (10) calendar days, following each deposit into, or withdrawal from, the Supplemental Trust Account and shall notify the Grantor promptly of the receipt by the Trustee of any Withdrawal Notice or Transfer Notice.
(d) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and or the Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Supplemental Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in willful misconduct or acted in bad with a lack of good faith in the selection of any such person or entity.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Supplemental Trust Account upon the inception of the Supplemental Trust Account and at regular intervals no less frequently than at the end of each calendar month quarter thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Supplemental Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Supplemental Trust Account or the Assets. Any out-of-pocket expenses incurred by the Trustee in relation to any such audit shall be reimbursed by the Grantor and/or the Beneficiary, as the case may be.
(gh) Unless otherwise provided in this Supplemental Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Supplemental Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Supplemental Trust Agreement against the Trustee.
(ij) No provision of this Supplemental Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Supplemental Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Supplemental Trust Agreement and Agreement. The opinion of said counsel shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, suffered or suffered omitted by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such said counsel.
(k) The Trustee shall notify , other than with respect to the Grantor and Beneficiary in writing withdrawal of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In Assets by the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyBeneficiary.
(l) Notwithstanding any provision Except in the case of this Agreement to the contrarySurplus Notes (which shall be maintained by the Trustee in certificated form), the Trustee may maintain the Assets in book-entry form with, and utilize the services of, any Federal Reserve Bank, The Depository Trust Company or similar such depositories (“Central Depositories”) as appropriate. Assets may be held in the name of a nominee maintained by the Trustee or any Central Depository.
(m) The Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Supplemental Trust Account in accordance with the provisions of this Supplemental Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Supplemental Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s)) selected by it, including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In Notwithstanding the event foregoing, the Trustee shall not be responsible for loss of loss or damage to the Assets under the careheld in Central Depositories, custodyincluding but not limited to loss due to fire, possession burglary, robbery, theft or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of caremysterious disappearance.
(mn) Whenever in the administration of the Supplemental Trust Account created by this Supplemental Trust Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of Grantor and/or Beneficiary, as appropriate, and delivered to the Trustee and said statement or certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on the faith thereof.
(o) The Trustee shall execute and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for the existence, genuineness any act or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement)omission, or for the compliance of the Assets with any lawssolvency, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument such agent or noticebroker, including any financing unless in the case of agent(s), such agent(s) is selected by the Trustee, or continuation statement or any tax or securities formin the case of brokers, at any time in any public office or elsewhere for such broker is negligently selected by the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsTrustee.
(np) The Parties acknowledge and agree that certain Trustee is not required to make advances of cash, securities or any other property on behalf of the Supplemental Trust Account, or permit overdrafts in the Supplemental Trust Account in connection with the acquisition or disposition of Assets are in the Supplemental Trust Account; provided, however, that if the Trustee is required by industry practice to make such advance or permit such an overdraft, such advance or overdraft shall be deemed a loan by the Trustee to the Grantor, which loan shall be payable on demand and will continue to be subject to servicing and custodial agreements in effect on shall bear interest at the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”)Trustee’s customary rate for similar loans. The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement be solely responsible for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none repayment of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of loan and any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementsinterest thereon.
Appears in 1 contract
Samples: Supplemental Trust Agreement (White Mountains Insurance Group LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset is receive assets and hold the assets in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.a safe place;
(b) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary a statement of all assets in the trust fund on its inception at the end of each calendar quarter;
(c) The Trustee shall notify the Grantor and the Beneficiary, within 10 days, of any deposits to any provision of law. It is understood and agreed that or withdrawals from the trust fund;
(d) The Trustee shall hold the assets in the Trust fund at the Trustee’s duties are solely those set forth herein and that 's office in the United States;
(e) The Trustee shall have no duty to take may deposit any other action unless specifically agreed to assets in the trust fund in a book-entry account maintained at the Federal Reserve Bank of [ ] or in depositories such as the Depository Trust Company. Assets may be held in the name of a nominee maintained by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entitydepository.
(cf) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dg) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account trust fund or the Assetsassets.
(gh) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(kl) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any invasion of the Assetstrust corpus to pay compensation to, or reimburse the expense of the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careis hereby prohibited.
(m) The Trustee shall not be responsible for deliver to the existence, genuineness or value Beneficiary written notice of any termination at least 30 days before termination of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assetstrust fund.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the The Trustee shall determine that such Asset is receive assets and hold the assets in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.a safe place;
(b) The Trustee shall be under no obligation provide to determine whether or not any instructions given by the Grantor and the Beneficiary are contrary a statement of all Assets in the trust fund on its inception at the end of each calendar quarter;
(c) The Trustee shall notify the Grantor and the Beneficiary, within 10 days, of any deposits to any provision of law. It is understood and agreed that or withdrawals from the trust fund;
(d) The Trustee shall hold the Assets in the Trust fund at the Trustee’s duties are solely those set forth herein and that 's office in the United States;
(e) The Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the trust fund in a book-entry account maintained at the Federal Reserve Bank of [ ] or in depositories such as the Depository Trust Account as to which a default Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(cf) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(dg) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account trust fund or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely upon all instructions given by applicable officers of named in incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the an attorney-in-fact or (ii) from any officer of the Grantor or of the BeneficiaryBeneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall only be liable for its own negligence, willful misconduct or lack of good faith.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(jk) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties hereunder for any action taken or suffered by it under this Trust Agreement or in respect of under any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(kl) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any invasion of the Assetstrust corpus to pay compensation to, or reimburse the expense of the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careis hereby prohibited.
(m) The Trustee shall not be responsible for deliver to the existence, genuineness or value Beneficiary written notice of any termination at least 30 days before termination of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assetstrust fund.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Platinum Underwriters Holdings LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person Person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except Assets. The Trustee agrees to use reasonable efforts to advise the Grantor and the Beneficiary of the occurrence of any default with respect to securities held in trust hereunder to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection it has received notice of any such person or entitysame.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible SecuritiesInvestments or to determine the value of any Asset.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement (the “Asset Statement”), containing (i) a description of all of the Assets in the Trust Account and (ii) information pertaining to all deposits, withdrawals and substitutions made during the statement period, upon the inception of the Trust Account and at the end of each calendar month thereafter; provided, however, the Asset Statement shall not include any other information regarding Commercial Mortgage Loans or Bank Loans (which shall be reported on the applicable Custody Transmission). The statement shall include a description of the Assets in the Trust Account and Asset Statement shall be delivered within five (5) business days Business Days following the end of each such calendar month. The Asset Statement to be delivered pursuant to this Section 7(e) shall be deemed delivered by the Trustee to the Grantor and the Beneficiary to the extent that prior to the end of such calendar month, the Grantor and the Beneficiary, as the case may be, had requested and been given access to the Trustee’s automated data system affording on-line access to Trust Account information and such information is posted by the Trustee on such system within the relevant period.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g1) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Grantor or Trustee from time to time by the Beneficiary Grantor, any relevant Asset Manager and the Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt acknowledges and agrees that it is fully informed of notice the protections and risks associated with the various methods of such delinquency.
(l) Notwithstanding any provision of this Agreement transmitting instructions to the contraryTrustee, and that there may be more secure methods of transmitting instructions than the Trustee shall be liable for (i) subject to Section 7(n), method selected by the safekeeping sender. Each of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree agrees that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreementssecurity procedures, including with respect to any of the Assets at any time during which such Assets are under the careif any, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees followed in connection with a transmission of the Trustee), (ii) the performance by the Trustee instructions provide to it a commercially reasonable degree of any protection in light of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements particular needs and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscircumstances.
Appears in 1 contract
Samples: Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Reserve Trust Account upon the inception of the Reserve Trust Account and at the end of each calendar month thereafterthereafter (the "Monthly Statement"). The statement Monthly Statement shall include a description list all of the Assets in the Trust Account and shall be delivered within five given as soon as practicable, but in no event later than ten (510) business days following Business Days after the end of the calendar month most recently concluded. The Trustee shall also provide the Grantor and the Beneficiary with access to the Trustee's on-line electronic account reporting system to allow them to view the status of and activities in the Reserve Trust Account.
(b) Before accepting any asset for deposit to the Reserve Trust Account, the Trustee shall determine that such calendar monthasset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or any other Person.
(c) The Trustee shall notify the Grantor and the Beneficiary, within ten (10) days, of any deposits to or withdrawals from the Reserve Trust Account. The Trustee will be deemed to have delivered the notices of deposits to or withdrawals from the Reserve Trust Account if such notice is available on one or more of the Trustee's systems to deliver electronic media.
(d) All Assets shall be safely held by the Trustee in its office in the United States, except that the Trustee may hold any Asset that is in book-entry form as of the date it is credited to the Reserve Trust Account (a "Book-Entry Asset") through the book-entry account maintained by the Trustee with the related depository for such Book-Entry Asset (such a depository being referred to herein as a "Depository"). A Book-Entry Asset may be held in the name of a nominee maintained by the Depository. 11 <Page> (e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Reserve Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s 's normal business hours, hours any books, documents, papers and records relating to the Reserve Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely conclusively upon all instructions Communications (including, without limitation, Investment Orders, Beneficiary Withdrawal Notices, Grantor Withdrawal Notices and Termination Notices) given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the BeneficiaryBeneficiary (collectively "Instructions"), including, without limitation, instructions including Instructions given by letter, facsimile transmission or electronic mail or other electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith without negligence or willful misconduct on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein or (ii) notice from any officer officer, agent or employee of the Grantor or the BeneficiaryBeneficiary named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, willful misconduct or lack of good faith. Subject to the preceding sentence, the Trustee is not liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document 12 <Page> contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, or (ii) for any consequential, punitive or special damages.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law. The Trustee shall exercise the same due care that is expected of a fiduciary with the responsibility for the safeguarding of the Assets in the Reserve Trust Account and for compliance with all provisions of this Agreement, whether or not the Assets are in the Trustee's possession.
(j) The Trustee may confer with counsel a nationally recognized outside law firm of its own choice selection in relation to matters arising under this Trust Agreement and Agreement. The written opinion of such law firm shall have be full and complete authorization from authority and protection for the other Parties for Trustee with respect to any action taken taken, omitted or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsellaw firm.
(k) The Trustee parties hereto acknowledge that nothing in this Agreement shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, obligate the Trustee shall inform to extend credit, grant financial accommodation or otherwise advance moneys for the Grantor and the Beneficiary immediately upon Trustee’s receipt purpose of notice of such delinquencymaking any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard hereby waives any right of care counterclaim, banker's lien, liens or perfection rights as securities intermediary with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Reserve Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 1 contract
Samples: Reinsurance Agreement
Additional Rights and Duties of the Trustee. and the Securities Intermediary.
(a) The Trustee shall, concurrent with delivery of each monthly Valuation Report, deliver a summary of account activity for the month just ended to the Grantor and the Beneficiary.
(b) Before accepting any Asset for deposit to the Security Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary willmay, negotiate such Asset without consent or signature from the Grantor or any person or entity other Person, other than a Depository and the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee may deposit any Assets in the Security Trust Account in a book-entry account maintained at a Federal Reserve Bank or in depositories such as The Depository Trust Company, the Participants Trust Company, Cedel, and Euroclear (the Federal Reserve Bank and such other depositories being referred to herein as "Depositories"). Assets may be held in the name of a nominee maintained by the Trustee or by any such Depositories.
(d) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) . The Trustee shall have no responsibility whatsoever forward all mail to determine that any Assets in the Trust Account are addressee whether or continue to be Eligible Securitiesnot opened.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(f) The Trustee shall keep full and complete records of the administration of the Security Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s 's normal business hours, hours any books, documents, papers and records relating to the Security Trust Account or the Assets.
(gf) Unless otherwise provided in this Trust Agreement, the The Trustee is authorized to follow and rely conclusively upon all instructions Communications (including, without limitation, Investment Orders, Excess Withdrawal Notices, Reserve Withdrawal Notices, Beneficiary's Withdrawal Notices, Grantor's Withdrawal Notices, Reserve Trust Shortfall Notices, ING Event Notices and Termination Notices), given by officers of officers, agents and/or employees named in letters and incumbency certificates furnished to the Trustee from time to time by the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions Beneficiary (collectively "Instructions") including Instructions given by letter, letter or facsimile transmission or electronic media, if the Trustee reasonably believes such instructions Instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructionsInstructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact Instructions prior to receipt by it of (i) notice of the revocation of the written authority of the attorney-in-fact individual(s) named therein or (ii) notice from any officer officer, agent or employee of the Grantor or the BeneficiaryBeneficiary named in a letter or incumbency certificate delivered hereunder prior to receipt by it of a more current certificate.
(hg) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amendedamended in accordance with the terms hereof, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, gross negligence, willful misconduct or bad faith. In no event shall the Trustee be liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document contemplated by and given in accordance with this Agreement from the Grantor or the Beneficiary, (ii) for any consequential, punitive or special damages, (iii) for the acts or omissions of its nominees, unless the Trustee chose such person without due care, or (iv) for an amount in excess of the value of the Assets, valued as of the most recent valuation report.
(ih) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(ji) The Trustee may confer with counsel of its own choice selection in relation to matters arising under this Trust Agreement and shall have full shall, upon demand, be indemnified and complete authorization held harmless from and against any and all Losses by the other Parties Grantor hereunder for any action taken actions taken, omitted or suffered by it under in connection with this Trust Agreement or in respect of under any transaction contemplated hereby in good faith without gross negligence or willful misconduct and in accordance with opinion of such counsel. The opinion of such law firm shall be full and complete authority and protection for the Trustee with respect to any action taken, suffered or omitted by it in good faith and in accordance with the opinion of such counsellaw firm.
(j) Subject to the requirement of good faith, reasonableness and the lack of gross negligence or willful misconduct, the Trustee shall be protected in acting upon any Communications (including, without limitation, any Investment Order or Instructions) reasonably believed by the Trustee to be genuine and to have been signed, sent or presented by the proper party or parties. All notices to the Trustee (unless otherwise provided therein) shall be deemed to be effective when actually received by a responsible officer of the Trustee.
(k) The Trustee shall notify Whenever, in the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any administration of the AssetsSecurity Trust Account created by this Agreement, the Trustee shall inform reasonably deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action thereunder, subject to the requirement of reasonableness, good faith and lack of gross negligence and willful misconduct, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement or certificate signed by or on behalf of the Grantor and and/or the Beneficiary immediately upon Trustee’s receipt and delivered to the Trustee and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it on reliance thereon, subject to this paragraph, but in its discretion exercised in a reasonable manner, the Trustee may in lieu thereof accept other evidence of notice of the fact or matter or may require such delinquencyother or additional evidence as it may deem reasonable.
(l) Notwithstanding any provision of Except when otherwise expressly provided in this Agreement and subject to the contraryrequirement of reasonableness, good faith and lack of negligence or willful misconduct, any Communications (including, without limitation, any Investment Order or Instructions) to be delivered or furnished by the Trustee Grantor or the Beneficiary shall be liable for (i) subject sufficient to Section 7(n), be delivered or furnished in the safekeeping name of the Assets and administering Grantor or the Trust Account Beneficiary by such officer or officers of the Grantor or the Beneficiary as may be designated in accordance a certificate, resolution or letter of advice by such party. Written notice of such designation by the Grantor or the Beneficiary shall be filed with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairsTrustee. The Trustee shall be strictly liable for physical loss of protected in acting upon any Communications (including, without limitation, any Investment Order or damage to Assets under its care, custody, possession Instruction) made by such officer or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand agent of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law Beneficiary with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of careauthority conferred on it.
(m) The Notwithstanding anything to the contrary provided herein, the Trustee shall is not be responsible for the existence, genuineness any Losses resulting from reasons or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any lawscauses beyond its control, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recordingwithout limitation, filing nationalization, expropriation, currency restrictions, acts of war, terrorism, insurrection, revolution, civil unrest, riots or registration (strikes, nuclear fusion or for the rerecording, refiling fission or reregistration) acts of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the AssetsGod.
(n) The Parties acknowledge and agree that certain nothing in this Agreement shall obligate the Trustee to extend credit, grant financial accommodation or otherwise advance moneys for the purpose of making any payments or part thereof or otherwise carrying out any Instructions, including, without limitation, any Investment Order.
(o) In the event of any reasonable ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Trustee hereunder, the Trustee may, in its reasonable discretion, refrain from taking any action other than retain possession of the Assets are Assets, unless the Trustee receives written instructions, signed by the Grantor and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended Beneficiary, which eliminate such ambiguity or otherwise modified from time to time, including uncertainty. In the event of any replacements thereof, dispute between or conflicting claims by or among the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and/or any other person or entity with respect to any Assets, the Trustee shall be entitled, in its reasonable discretion, to refuse to comply with any and agree that all claims, demands or instructions with respect to such Assets, so long as such dispute or conflict shall continue, and the Trustee shall not be or become liable in any way for such failure or refusal to comply with such conflicting claims, demands or instructions. The Trustee shall be entitled to refuse to act until, in its reasonable discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Trustee or (ii) the Trustee shall have no liability under this Trust Agreement for received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all Losses which it may incur by reason of so acting. The Trustee may, in addition, elect, in its reasonable discretion, to commence an interpleader action or omission of seek other judicial relief or orders as it may deem, in its sole discretion, if necessary. The costs and expenses (including reasonable attorney's fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Grantor.
(p) The Trustee may execute any of the parties trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(q) The Securities Intermediary agrees that it will comply with entitlement orders issued by the Trustee in accordance with the terms of this Agreement, and that such compliance is not subject to the Servicing/Custodial Agreementsany conditions, including qualifications or further consents. The Securities Intermediary will not comply with entitlement orders issued by any other Person.
(r) The Securities Intermediary hereby waives any right of counterclaim, bankers lien, liens or perfection rights as securities intermediary with respect to any of the Assets at any time during which such Assets are under Assets, the care, custody, possession or control of any of proceeds thereof and the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Security Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsAccount.
Appears in 1 contract
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person Person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except Assets. The Trustee agrees to use reasonable efforts to advise the Grantor and the Beneficiary of the occurrence of any default with respect to securities held in trust hereunder to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection it has received notice of any such person or entitysame.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible SecuritiesInvestments or to determine the value of any Asset.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement (the “Asset Statement”), containing (i) a description of all of the Assets in the Trust Account and (ii) information pertaining to all deposits, withdrawals and substitutions made during the statement period, upon the inception of the Trust Account and at the end of each calendar month thereafter; provided, however, the Asset Statement shall not include any other information regarding Commercial Mortgage Loans or Bank Loans (which shall be reported on the applicable Custody Transmission). The statement shall include a description of the Assets in the Trust Account and Asset Statement shall be delivered within five (5) business days Business Days following the end of each such calendar month. The Asset Statement to be delivered pursuant to this Section 7(e) shall be deemed delivered by the Trustee to the Grantor and the Beneficiary to the extent that prior to the end of such calendar month, the Grantor and the Beneficiary, as the case may be, had requested and been given access to the Trustee’s automated data system affording on-line access to Trust Account information and such information is posted by the Trustee on such system within the relevant period.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s normal business hours, any books, documents, papers and records relating to the Trust Account or the Assets.
(g) (7) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of named in incumbency certificates furnished to the Grantor or Trustee from time to time by the Beneficiary Grantor, any relevant Asset Manager and the Beneficiary, respectively, and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee reasonably believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-in- fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth Beneficiary named in this Trust Agreement, as it may from time an incumbency certificate delivered hereunder prior to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered receipt by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency more current certificate. Each of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt acknowledges and agrees that it is fully informed of notice the protections and risks associated with the various methods of such delinquency.
(l) Notwithstanding any provision of this Agreement transmitting instructions to the contraryTrustee, and that there may be more secure methods of transmitting instructions than the Trustee shall be liable for (i) subject to Section 7(n), method selected by the safekeeping sender. Each of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree agrees that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreementssecurity procedures, including with respect to any of the Assets at any time during which such Assets are under the careif any, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees followed in connection with a transmission of the Trustee), (ii) the performance by the Trustee instructions provide to it a commercially reasonable degree of any protection in light of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements particular needs and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreementscircumstances.
Appears in 1 contract
Samples: Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co)
Additional Rights and Duties of the Trustee. (a) Before accepting The Trustee shall notify the Grantor, any Asset for deposit designee of the Grantor under Section 2(f) (at such address as may be provided by such designee to the Trustee in writing from time to time) and the Beneficiary in writing within five (5) business days following each deposit to, withdrawal from or transfer between the Trust AccountAccounts; provided, however, the Trustee shall determine notify the Grantor and the Beneficiary in writing within three (3) business days following (i) each withdrawal from the Trust Account that totals an amount equal to or in excess of $20,000,000 or (ii) any number of withdrawals that results in an amount equal to or in excess of $20,000,000 if such withdrawals occur within a two day period of each other. The Trustee will be deemed to have delivered such notice of deposit, withdrawal and receipt of Grantor Withdrawal Notice or Beneficiary Withdrawal Notice, as applicable, if each such notice is available on one or more of the Trustee's systems for the delivery of electronic media to which system(s) Grantor and Beneficiary have access.
(b) The Trustee shall not accept any Assets (other than cash) for deposit into the Trust Accounts unless the Trustee determines that it is or will be the registered owner of and holder of legal title to the Assets or that such Asset is Assets are in such form that, to that the extent practicable, the Beneficiary whenever necessary Trustee may, or the Trustee upon direction by the Beneficiary willif applicable to such asset class, negotiate any such Asset Assets, without consent or signature from the Grantor or any other person or entity other than entity. Any Assets received by the Trustee which, if applicable to such asset class, are not in accordance with such proper negotiable form or for which title has not been transferred to the terms of this Trust AgreementTrustee shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable.
(bc) The Trustee shall be under have no obligation responsibility whatsoever to determine whether that any Assets (other than cash) in the Trust Accounts are or not any instructions given continue to be Eligible Securities.
(d) All Assets shall be held in a safe place by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that Trustee at the Trustee’s duties are solely those set forth herein and 's office in the United States, except that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account Accounts in a book entry account maintained at the Federal Reserve Bank of New York or in depositories such as to which a default the Depository Trust Company and the Participants Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(ce) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the TrusteeTrustee and shall forward such mail to the party to whom it is directed.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(ef) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon Accounts at the inception of the Trust Account Accounts and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered within five (5) business days following the end of such calendar month.
(fg) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. Upon the request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account Accounts or the Assets.
(gh) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-attorneys in fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission transmission, telegram, teletype, cablegram or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party Party or partiesParties. In the absence of negligence, the The Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-attorney in fact or Investment Manager prior to receipt by it of notice of the revocation of the written authority of the attorney-in-attorney in fact or Investment Manager, or (ii) from any officer of the Grantor or the Beneficiary.
(hi) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall not be liable except for its own negligence, willful misconduct or lack of good faith, and in no event shall the Trustee be liable for special, punitive, or consequential losses or damages arising in connection with this Agreement.
(ij) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for . If any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of third party asserts a delinquency of a timely payment in regard to lien against any of the Assets, the Trustee shall inform shall, upon becoming aware of such assertion, promptly notify both the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquencyclaim.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(mk) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, Assets or for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, 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 of title to the Assets, for insuring the Assets, Assets or for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(l) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Trustee such as to any act or provision of any present or future law or regulation or governmental authority, terrorism, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex.
(m) The Trustee is not required to make advances of cash, securities or any other property on behalf of the Trust Accounts, or permit overdrafts in the Trust Accounts in connection with the acquisition or disposition of Assets in the Trust Accounts.
(n) The Parties acknowledge and agree that certain At any time in connection with the performance of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereofits services under this Agreement, the “Servicing/Custodial Agreements”)Trustee may consult with counsel selected by it who may be counsel for Grantor, Grantor's designee under Section 2(f) or Beneficiary. The Grantor opinion of said counsel will be full and the Beneficiary acknowledge complete authority and agree that (i) protection for the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any action taken, suffered or omitted by it in good faith and in accordance with the opinion of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties said counsel other than with respect to the Servicing/Custodial Agreements or any withdrawal of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance Assets by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial AgreementsBeneficiary.
Appears in 1 contract
Additional Rights and Duties of the Trustee. 8.1 The Trustee shall notify the Settlor and the Beneficiary in writing within five (a5) Business Days following each deposit to, or withdrawal from, the Trust Fund.
8.2 Before accepting any Asset for deposit to the Trust AccountFund, the Trustee shall determine that such Asset is in such form that, to that the extent practicable, the Beneficiary whenever necessary mayBeneficiary, or the Trustee upon direction by the Beneficiary willBeneficiary, may, whenever necessary, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust AgreementAgreement without consent or signature from the Settlor or any other person or entity other than the Trustee.
(b) 8.3 The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to may deposit any Assets in the Trust Account Fund in a book-entry account maintained at the Federal Reserve Bank of New York or in United States' depositories such as to which a default the Depository Trust Company. Assets may be held in the payment name of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed a nominee maintained by the Grantor Trustee or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of by any such person or entitydepository.
(c) 8.4 The Trustee shall accept and open all mail directed to the Grantor Settlor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) 8.5 The Trustee shall furnish to the Grantor Settlor and the Beneficiary a statement of all Assets in the Trust Account Fund upon the inception of the Trust Account Fund and at the end of each calendar month thereafter. The statement shall include a description of the Assets in the Trust Account and shall be delivered quarter thereafter within five t hirty (530) business calendar days following after the end of such calendar monthquarter.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable law. 8.6 Upon the request of the Grantor Settlor or the Beneficiary, the Trustee shall promptly permit the Grantor Settlor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, during the Trustee’s 's normal business hours, any books, documents, papers and records relating to the Trust Account Fund or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) 8.7 The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Trustee shall be liable only for its own negligence, wilful misconduct, dishonesty or fraud.
(i) 8.8 No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s 's reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with the provisions of this Trust Agreement and (ii) its own negligence, willful misconduct or lack of good faith in performing its duties under this Trust Agreement. The Trustee shall exercise the standard of care with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect the burden of proof under applicable law with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any of the Assets, for the validity, perfection, priority or enforceability of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assets.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Trust Agreement (Pxre Group LTD)
Additional Rights and Duties of the Trustee. (a) Before accepting any Asset for deposit to the Trust Account, the Trustee shall determine that such Asset is in such form that, to the extent practicable, the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, negotiate such Asset without consent or signature from the Grantor or any person or entity other than the Trustee in accordance with the terms of this Trust Agreement.
(b) The Trustee shall be under no obligation to determine whether or not any instructions given by the Grantor and Beneficiary are contrary to any provision of law. It is understood and agreed that the Trustee’s duties are solely those set forth herein and that the Trustee shall have no duty to take any other action unless specifically agreed to by the Trustee in writing. Without limiting the generality of the foregoing, the Trustee shall not have any duty to advise, manage, supervise or make recommendations with respect to the purchase, retention or sale of Assets with respect to any Assets in the Trust Account as to which a default in the payment of principal or interest has occurred or to be responsible for the consequences of insolvency or the legal inability of any broker, dealer, bank or other agent employed by the Grantor or Trustee with respect to the Assets except to the extent that the Trustee was negligent, engaged in misconduct or acted in bad faith in the selection of any such person or entity.
(c) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.
(d) The Trustee shall have no responsibility whatsoever to determine that any Assets in the Trust Account are or continue to be Eligible Securities.
(e) The Trustee shall furnish to the Grantor and the Beneficiary a statement of all Assets in the Trust Account upon the inception of the Trust Account and at the end of each calendar month thereafterthereafter (the “Monthly Statement”).The Monthly Statement shall list (i) all of the Assets with CUSIP number (if applicable) and other specific identifying information with respect to any Asset that has no CUSIP number and (ii) any transfers of Assets to or from the Trust Account during such calendar month, including all purchases and sales of Assets during such calendar month; provided, however, that the Monthly Statement shall not include Whole Loans (which shall be reported on the Custody Transmission). The statement Monthly Statement shall include a description be given as soon as practicable, but in no event later than ten (10) Business Days after the end of the calendar month most recently concluded. At the Grantor’s or the Beneficiary’s request, the Trustee may provide daily reporting to the Beneficiary, the Grantor or its designated Investment Manager by granting access to the Trustee’s automated data system affording on-line access to trust account information. The Monthly Statement under this Section 8(a) and the notices under Section 8(c) shall be deemed given by the Trustee to the Grantor and the Beneficiary to the extent that the Grantor and the Beneficiary, as the case may be, had previously requested and had been given access to the Trustee’s automated data system affording on-line access to trust account information and such information is posted by the Trustee on such system within the relevant period.
(b) Except as otherwise provided in Section 1(c)(iv), before accepting any asset for deposit to the Trust Account, the Trustee shall determine that such asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon written direction by the Beneficiary may, negotiate such asset without consent or signature from the Grantor or, except as agreed by the Beneficiary pursuant to Section 1(i) or otherwise, any other Person other than the Trustee, in accordance with the terms of this Agreement.
(c) The Trustee shall notify the Grantor and the Beneficiary, within ten (10) days, of any deposits to or withdrawals from the Trust Account.
(d) All Assets in the Trust Account and shall be delivered within five maintained by the Trustee on its books and records. Any Assets received by the Trustee in physical form will be continuously held in a safe place at the Trustee’s offices or those of a Depository. Any Asset that is in book-entry form (5a “Book-Entry Asset”) business days following shall be held through the end participant account maintained by the Trustee with the Depository for such Book-Entry Asset. Any Book-Entry Asset and cash deposited by the Trustee in a Depository will be held subject to the rules, terms and conditions of such calendar monthDepository. The Trustee shall identify on its books and records all Assets and cash held in the Trust Account, whether held directly or indirectly through a Depository. Assets may be held in the name of a nominee maintained by the Trustee or by any such Depository.
(e) The Trustee shall accept and may open all mail directed to the Grantor or the Beneficiary in care of the Trustee. The Trustee shall promptly forward all mail to the addressee whether or not opened.
(f) The Trustee shall keep full and complete records of the administration of the Trust Account in accordance with all applicable lawAccount. Upon the reasonable written request of the Grantor or the Beneficiary, the Trustee shall promptly permit the Grantor or the Beneficiary, their respective agents, employees, employees or independent auditors and regulatory authorities to examine, audit, excerpt, transcribe and copy, at their own expense, during the Trustee’s normal business hours, hours any books, documents, papers and records relating to the Trust Account or the Assets.
(g) Unless otherwise provided in this Trust Agreement, the Trustee is authorized to follow and rely upon all instructions given by officers of the Grantor or the Beneficiary and by attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including, without limitation, instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. In the absence of negligence, the Trustee shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on such instructions. The Trustee shall not incur any liability perform the following functions with respect to Eligible Assets consisting of Bank Loans deposited in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor or the Beneficiary.
(h) The duties and obligations of the Trustee shall only be such as are specifically set forth in this Trust Agreement, as it may from time to time be amended, and no implied duties or obligations shall be read into this Trust Agreement against the Trustee.
(i) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of law.
(j) The Trustee may confer with counsel of its own choice in relation to matters arising under this Trust Agreement and shall have full and complete authorization from the other Parties for any action taken or suffered by it under this Trust Agreement or in respect of any transaction contemplated hereby in good faith and in accordance with the opinion of such counsel.
(k) The Trustee shall notify the Grantor and Beneficiary in writing of any payment default occurring as to any Asset within three (3) business days after Trustee receives notice of such default. In the event of a delinquency of a timely payment in regard to any of the Assets, the Trustee shall inform the Grantor and the Beneficiary immediately upon Trustee’s receipt of notice of such delinquency.
(l) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall be liable for (i) subject to Section 7(n), the safekeeping of the Assets and administering the Trust Account in accordance with Section 1(c) and the provisions cash receipts and proceeds with respect thereto, and shall be permitted to use Markit WSO, or such other registration system as may be necessary to perform such duties under this Agreement in respect of this Trust Agreement Bank Loans:
(i) purchase Bank Loans and remit funds to the recipient borrower or seller of such Bank Loans upon written instruction from the Grantor or its designated Investment Manager;
(ii) sell Bank Loans and receive funds from the recipient lender or purchaser of such Bank Loans upon written instruction from the Grantor or its designated Investment Manager;
(iii) input and maintain standard Bank Loan information into the registration system in connection with (i) and (ii) its own negligenceof this Section 8(g), willful misconduct and with respect to any release of Trust Account Assets to the Beneficiary pursuant to Section 2 or lack of good faith in performing its duties as may otherwise be required under this Trust Agreement. The Trustee shall exercise terms hereof;
(iv) forward to the standard of care Grantor any notices received with respect to the Assets that a professional trustee, engaged in the banking or trust company industry, having professional expertise in financial Bank Loans; and
(v) prepare and securities processing transactions and custody would observe in such affairs. The Trustee shall be strictly liable for physical loss of or damage to Assets under its care, custody, possession or control or the care, custody, possession or control of its subcustodians, other agents or nominee(s), including but not limited to loss due to fire, burglary, robbery, theft or mysterious disappearance. In the event of loss or damage to the Assets under the care, custody, possession or control of Trustee or its subcustodians, other agents or nominee(s), Trustee shall, upon demand of the Grantor or Beneficiary, promptly replace such Assets with like kind and quality together with, all rights and privileges pertaining to the Assets (by among other methods, posting appropriate security or bond with the issuer of the Assets to obtain reissue of such Assets, or, if acceptable to the Grantor, deliver cash equivalent to the market value of the Assets as of the date of the discovery of the loss or damage). Nothing contained in any contract between Trustee and any entity authorized to hold Assets, as defined herein, shall diminish or otherwise alter the liability of Trustee to the Grantor or Beneficiary. The provisions of this paragraph shall not affect and the burden of proof under applicable law Investment Manager a position summary statement, cash flow activity and contract accrual reports with respect to the assertions of liability in any claim, action or dispute alleging any breach of or failure to observe such standard of care.
(m) The Trustee shall not be responsible for the existence, genuineness or value of any Bank Loans as of the Assets, for the validity, perfection, priority or enforceability last Business Day of the liens in or with respect to any of the Assets, for the validity of title to the Assets, for insuring the Assets, for the payment of taxes, charges, assessments or liens each calendar month and otherwise on a mutually agreed upon or with respect to the Assets, for any obligations under any agreements or other documents evidencing or related to any of the Assets (other than this Trust Agreement), or for the compliance of the Assets with any laws, including any Environmental Law (as hereinafter defined). The Trustee shall have no responsibility for the recording, filing or registration (or for the rerecording, refiling or reregistration) of any instrument or notice, including any financing or continuation statement or any tax or securities form, at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective any lien upon or with respect to any of the Assetsperiodic basis.
(n) The Parties acknowledge and agree that certain of the Assets are and will continue to be subject to servicing and custodial agreements in effect on the date hereof (as amended or otherwise modified from time to time, including any replacements thereof, the “Servicing/Custodial Agreements”). The Grantor and the Beneficiary acknowledge and agree that (i) the Trustee shall have no liability under this Trust Agreement for any action or omission of any of the parties to the Servicing/Custodial Agreements, including with respect to any of the Assets at any time during which such Assets are under the care, custody, possession or control of any of the parties to the Servicing/Custodial Agreements or any of their respective depositories, subcustodians, other agents or nominees (and, solely for the purposes of limiting the liability and determining the duties of the Trustee under Section 7(l), none of such Persons shall be considered to be the depositories, subcustodians, agents or nominees of the Trustee), (ii) the performance by the Trustee of any of its obligations under this Trust Agreement may be delayed, limited or otherwise affected by the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements and (iii) the Trustee shall have no liability under this Trust Agreement as a result of the Trustee’s failure to perform any of its obligations under this Trust Agreement as a result of the actions or omissions of any of the parties to the Servicing/Custodial Agreements or as a result of the Assets being subject to the Servicing/Custodial Agreements.
Appears in 1 contract
Samples: Annuity Reinsurance Agreement (Horace Mann Life Insurance Co Separate Account)
