Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA. (b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTA. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust or its shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Declaration. The Delaware Trustee shall have no liability for the acts or omissions of any other person, including, without limitation, the Trustees. (c) The Delaware Trustee may be removed by the Trustee upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee. (d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law. (e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust and the Shareholders as the Trustee. No amendment or waiver of any provision of this Declaration which adversely affects the Delaware Trustee shall be effective against it without its prior written consent. (f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser or the Trust under this Declaration or any related document. (g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration. (h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.
Appears in 4 contracts
Samples: Agreement and Declaration of Trust (BlackRock Private Credit Fund), Agreement and Declaration of Trust (BlackRock Private Credit Fund), Agreement and Declaration of Trust (BlackRock Private Credit Fund)
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust Company in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Statutory Trust Act that the Trust Company have at least one trustee which has its principal place of business in the State of Delaware. It is understood and agreed by the parties hereto that the Delaware Trustee shall have none of the duties, obligations or liabilities of any other Person, including without limitation, any Trustee or the Board of Trustees. The Trust Company shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the TrustCompany’s obligations pursuant to Section 3807(a) of the DSTAStatutory Trust Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust Company in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTAStatutory Trust Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust Company or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Company or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, the TrusteesTrustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust Company and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser Administrator or the Trust Adviser or the Company under this Declaration of Trust or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct misconduct, bad faith or gross negligence. In particular, but not by way of limitation: :
(i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; ;
(ii) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; ;
(iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; ;
(iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; ;
(v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust Company as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; ;
(vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; ;
(vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust Company for payment or satisfaction thereof; and and
(viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this DeclarationDeclaration of Trust.
(h) In the event of the appointment of a successor Delaware TrusteeTrustee by the Board, such successor shall cause an amendment to the certificate of trust of the Trust Company to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTADelaware Statutory Trust Act, indicating the change of the Delaware Trustee’s identity.
Appears in 3 contracts
Samples: Agreement and Declaration of Trust (TPG Twin Brook Capital Income Fund), Agreement and Declaration of Trust (AG Twin Brook Capital Income Fund), Agreement and Declaration of Trust (AG Twin Brook Capital Income Fund)
Concerning the Delaware Trustee. (a) No implied obligations shall be inferred from this Declaration of Trust on the part of the Delaware Trustee. The Delaware Trustee is appointed to serve as shall not be liable for the trustee acts or omissions of the Trust Trustee nor shall the Delaware Trustee be liable for any act or omission by it in good faith in accordance with the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) directions of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA.
(b) The duties of the Delaware Trustee shall be limited accepts the trusts hereby created and agrees to (i) accepting legal process served on perform its duties hereunder with respect to the Trust in same but only upon the State terms of Delaware and (ii) the execution this Declaration of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTATrust. Except for the purpose of the foregoing sentence, the The Delaware Trustee shall not be deemed a Trusteepersonally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation:
(i) The Delaware Trustee shall not be a member personally liable for any error of judgment made in good faith by an officer or employee of the Board Delaware Trustee;
(ii) No provision of Trustees this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or duties hereunder, if the Delaware Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(iii) Under no circumstance shall the Delaware Trustee be personally liable for any representation, warranty, covenant or indebtedness of the Trust;
(iv) The Delaware Trustee shall not be personally responsible for or in respect of the genuineness, form or value of the Trust property, the validity or sufficiency of this Declaration of Trust or for the due execution hereof by the Trustee; and
(v) In the event that the Delaware Trustee is unsure of the course of action to be taken by it hereunder, the Delaware Trustee may request instructions from the Trustee and to the extent the Delaware Trustee follows such instructions in good faith it shall not be liable to any person. In the event that no instructions are provided within the time requested by the Delaware Trustee, it shall have no management responsibilities duty or owe liability for its failure to take any fiduciary duties to the Trust action or its shareholders. for any action it takes in good faith.
(c) To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Trustee or its shareholdersthe Trust, it is hereby understood and agreed by the other parties hereto Trustee agrees that such duties and liabilities are replaced by the duties and liabilities terms of the Delaware Trustee expressly set forth in this Declaration. Declaration of Trust.
(d) The Delaware Trustee shall have incur no liability for to anyone in acting upon any document believed by it to be genuine and believed by it to be signed by the acts proper party or omissions parties. As to any fact or matter the manner of any other person, including, without limitationascertainment of which is not specifically prescribed herein, the TrusteesDelaware Trustee may for all purposes hereof rely on a certificate, signed by the Trustee, as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(ce) The In the exercise or administration of the trusts hereunder, the Delaware Trustee (i) may act directly or, at the expense of the Trust, through agents or attorneys, and the Delaware Trustee shall not be removed liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee upon 30 days’ prior written notice in good faith, and (ii) may, at the expense of the Trust, consult with counsel, accountants and other experts, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other experts.
(f) Except as expressly provided in this Section 13, in accepting and performing the trusts hereby created, the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Delaware Trustee. Trust’s property for payment or satisfaction thereof.
(g) The Delaware Trustee may resign upon 30 days’ thirty (30) days prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 thirty (30) day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) trustee. Any Person person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(eh) The Delaware Trustee shall will be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust and the Shareholders as the Trustee. No amendment or waiver of any provision of this Declaration which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser or the Trust under this Declaration or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it compensated in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed separate fee agreement with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.
Appears in 2 contracts
Samples: Declaration of Trust (Apollo Debt Solutions BDC), Declaration of Trust (Apollo Debt Solutions BDC)
Concerning the Delaware Trustee. (ai) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA.
(bii) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTA. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust or its shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other person, including, without limitation, the TrusteesTrustee.
(ciii) The Delaware Trustee may be removed by the Trustee upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(div) Any Person person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(ev) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust and the Shareholders shareholders as the Trustee. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(fvi) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Personperson, including, without limitation, the Trustees, the Trust’s administrator or investment adviser Trustee or the Trust under this Declaration of Trust or any related document.
(gvii) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (ia) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (iib) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iiic) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (ivd) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; (ve) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vif) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A1) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B2) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (viig) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust for payment or satisfaction thereof; and (viiih) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this DeclarationDeclaration of Trust.
(hviii) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.
(ix) The Trust hereby agrees to (a) compensate the Delaware Trustee in accordance with a separate fee agreement with the Delaware Trustee, (b) reimburse the Delaware Trustee for all reasonable expenses relating to the services of the Delaware Trustee (including reasonable fees and expenses of counsel and other advisers retained by the Delaware Trustee) and (c) indemnify, defend and hold harmless the Delaware Trustee, and its employees, agents, officers and trustees (the “Indemnified DE Trustee Parties”) from and against any and all claims, actions, suits, demands, assessments, judgments, losses, liabilities, damages, costs, taxes, and expenses, including reasonable fees and expenses of counsel and including costs of enforcement of an Indemnified DE Trustee Party’s rights hereunder (collectively, “Expenses”), to the extent that such Expenses arise out of or are imposed upon or asserted at any time against such Indemnified DE Trustee Parties with respect to the performance of any duties contemplated by this Declaration of Trust or from the services provided or functions performed by the Delaware Trustee; provided, however, that the Trust shall not be required to indemnify any Indemnified DE Trustee Parties for any Expenses which are a result of the willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his or her position of such Indemnified DE Trustee Parties. To the fullest extent permitted by law, Expenses to be incurred by any Indemnified DE Trustee Parties shall, from time to time, be advanced by, or on behalf of, the Trust prior to the final disposition of any matter upon receipt by the Trust of an undertaking by, or on behalf of, such Indemnified DE Trustee Parties to repay such amount if it shall be determined that the Indemnified DE Trustee Parties are not entitled to be indemnified under this Declaration of Trust.
Appears in 1 contract
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust Company in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Statutory Trust Act that the Trust Company have at least one trustee which has its principal place of business in the State of Delaware. It is understood and agreed by the parties hereto that the Delaware Trustee shall have none of the duties, obligations or liabilities of any other Person, including without limitation, any Trustee or the Board of Trustees. The Trust Company shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the TrustCompany’s obligations pursuant to Section 3807(a) of the DSTAStatutory Trust Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust Company in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTAStatutory Trust Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust Company or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Company or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, the TrusteesTrustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust Company and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser Administrator or the Trust Adviser or the Company under this Declaration of Trust or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (AG Twin Brook Capital Income Fund)
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State THE CO-OWNER TRUSTEE AND THE CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 7.1. Acceptance of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTA. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trustee, shall not be a member of the Board of Trustees Co-Owner Trustee and shall have no management responsibilities or owe any fiduciary duties to the Trust or its shareholdersCo-Owner Eligible Lender Trustee; Duties. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Declaration. The Delaware Trustee shall have no liability for the acts or omissions of any other person, including, without limitation, the Trustees.
(c) The Delaware Trustee may be removed by the Trustee upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business Each of the Delaware Trustee, shall be the successor Delaware Co-Owner Trustee under and the Co-Owner Eligible Lender Trustee accepts the trusts hereby created and agrees to perform its respective duties hereunder with respect to such trusts but only upon the terms of this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act Agreement. The Co-Owner Trustee also agrees to be done on the disburse all moneys actually received by it constituting part of the parties heretoTrust Property upon the terms of the Related Documents and this Agreement. Neither the Delaware Trustee, except as may be required by applicable law.
(e) The Delaware the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be entitled to all of the same rights, protections, indemnities and immunities answerable or accountable hereunder or under this Declaration of Trust and with respect to the Trust and the Shareholders as the Trustee. No amendment or waiver of any provision of this Declaration which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser or the Trust under this Declaration or any related document.
(g) The Delaware Trustee shall not be personally liable Related Document under any circumstances, except that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as applicable, shall be answerable or accountable hereunder (i) for its own willful misconduct or gross negligence, (ii) in the case of the inaccuracy of any representation or warranty given by it contained in Section 7.3 hereof, (iii) for liabilities arising from its failure to perform obligations expressly undertaken by it in the last sentence of Section 6.4 hereof, (iv) for any investments issued by it or any branch or affiliate thereof in its commercial capacity and (v) for taxes, fees or other charges on, based on or measured by, any fees, commissions or compensation received by it in connection with any of the transactions contemplated by this Agreement or any Related Document. In particular, but not by way of limitation: limitation (iand subject to the exceptions set forth in the preceding sentence):
(a) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall not be personally liable for any error of judgment made in good faith; faith by an authorized officer of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, respectively;
(iib) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be liable with respect to any action taken or omitted to be taken by either in good faith in accordance with the instructions of the Instructing Party;
(c) no provision of this Declaration Agreement or any Related Document shall require the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, hereunder or under any Related Document if the Delaware Trustee they shall have reasonable grounds for believing that the payment repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; them;
(iiid) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed hereinTrustee, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Co-Owner Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Co-Owner Eligible Lender Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default indebtedness evidenced by or misconduct of such agents arising under this Agreement or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure eventRelated Documents, including but not limited to natural disaster, act the principal of war or terrorism, or other circumstances beyond its reasonable control, and interest and any Carryover Interest on the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.Notes;
Appears in 1 contract
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust Company in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Statutory Trust Act that the Trust Company have at least one trustee which has its principal place of business in the State of Delaware. The Trust Company shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the TrustCompany’s obligations pursuant to Section 3807(a) of the DSTAStatutory Trust Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust Company in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTAStatutory Trust Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust Company or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Company or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, the TrusteesTrustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust Company and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser Administrator or the Trust Adviser or the Company under this Declaration of Trust or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust Company as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust Company hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust Company for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this DeclarationDeclaration of Trust.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust Company to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTADelaware Statutory Trust Act, indicating the change of the Delaware Trustee’s identity.
Appears in 1 contract
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust Company in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Statutory Trust Act that the Trust Company have at least one trustee which has its principal place of business in the State of Delaware. The Trust Company shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the TrustCompany’s obligations pursuant to Section 3807(a) of the DSTAStatutory Trust Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust Company in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State State, which the Delaware Trustee is required to execute under Section 3811 of the DSTAStatutory Trust Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust Company or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Company or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, including the TrusteesTrustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 30-day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust Company and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, including the Trustees, the Trust’s administrator or investment adviser Administrator or the Trust Adviser or the Company under this Declaration of Trust or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own bad faith, willful misfeasance, gross negligence or willful misconduct or gross negligencefrom reckless disregard by the Delaware Trustee of its obligations and duties hereunder. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust Company as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust Company hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder hereunder, the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust Company for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this DeclarationDeclaration of Trust.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust Company to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTADelaware Statutory Trust Act, indicating the change of the Delaware Trustee’s identity.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (PGIM Private Credit Fund)
Concerning the Delaware Trustee.
(a) The Delaware Trustee is appointed to serve as the trustee of the Trust Company in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Statutory Trust Act that the Trust Company have at least one trustee which has its principal place of business in the State of Delaware. The Trust Company shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the TrustCompany’s obligations pursuant to Section 3807(a) of the DSTA.Statutory Trust Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust Company in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State State, which the Delaware Trustee is required to execute under Section 3811 of the DSTAStatutory Trust Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust Company or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust Company or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, including the Trustees.Trustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 30-day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee..
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law..
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust Company and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent..
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, including the Trustees, the Trust’s administrator or investment adviser Administrator or the Trust Adviser or the Company under this Declaration of Trust or any related document..
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own bad faith, willful misfeasance, gross negligence or willful misconduct or gross negligencefrom reckless disregard by the Delaware Trustee of its obligations and duties hereunder. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust Company as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust Company hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder hereunder, the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust Company for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.Declaration of Trust.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust Company to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTADelaware Statutory Trust Act, indicating the change of the Delaware Trustee’s identity..
Appears in 1 contract
Samples: Agreement and Declaration of Trust (PGIM Private Credit Fund)
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA Delaware Act that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTADelaware Act.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTADelaware Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trusteetrustee, shall not be a member of the Board of Trustees and shall have no management responsibilities or owe any fiduciary duties to the Trust or its shareholdersthe Shareholders. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholdersthe Shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this DeclarationDeclaration of Trust. The Delaware Trustee shall have no liability for the acts or omissions of any other personPerson, including, without limitation, the TrusteesTrustees and the Adviser.
(c) The Delaware Trustee may be removed by the Trustee Trustees upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the TrusteeTrustees. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee Trustees or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee. Notwithstanding the foregoing, no successor Delaware Trustee must be appointed if the Trust is operating as a registered investment company under the 1940 Act, and complies with Section 3807(b) of the Delaware Act.
(d) Any If applicable, any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust and the Shareholders as the TrusteeTrustees. No amendment or waiver of any provision of this Declaration of Trust which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator Administrator or investment adviser the Adviser or the Trust under this Declaration of Trust or any related document.
(g) The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: (i) the Delaware Trustee shall not be personally liable for any error of judgment made in good faith; (ii) no provision of this Declaration of Trust shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the Trust; (iv) the Delaware Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration of Trust or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration of Trust shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration of Trust provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this DeclarationDeclaration of Trust.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTADelaware Act, indicating the change of the Delaware Trustee’s identity.
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Samples: Agreement and Declaration of Trust (Axxes Private Markets Fund)
Concerning the Delaware Trustee. (a) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State THE CO-OWNER TRUSTEE AND THE CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 7.1. Acceptance of Delaware for the sole purpose of satisfying the requirement pursuant to Section 3807(a) of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of Delaware. The Trust shall have at least one other trustee (other than the Delaware Trustee) to perform all obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA.
(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the DSTA. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a Trustee, shall not be a member of the Board of Trustees Co-Owner Trustee and shall have no management responsibilities or owe any fiduciary duties to the Trust or its shareholdersCo-Owner Eligible Lender Trustee; Duties. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Declaration. The Delaware Trustee shall have no liability for the acts or omissions of any other person, including, without limitation, the Trustees.
(c) The Delaware Trustee may be removed by the Trustee upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business Each of the Delaware Trustee, shall be the successor Delaware Co-Owner Trustee under and the Co-Owner Eligible Lender Trustee accepts the trusts hereby created and agrees to perform its respective duties hereunder with respect to such trusts but only upon the terms of this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act Agreement. The Co-Owner Trustee also agrees to be done on the disburse all moneys actually received by it constituting part of the parties heretoTrust Property upon the terms of the Related Documents and this Agreement. Neither the Delaware Trustee, except as may be required by applicable law.
(e) The Delaware the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be entitled to all of the same rights, protections, indemnities and immunities answerable or accountable hereunder or under this Declaration of Trust and with respect to the Trust and the Shareholders as the Trustee. No amendment or waiver of any provision of this Declaration which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising or monitoring the performance and the duties and obligations of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser or the Trust under this Declaration or any related document.
(g) The Delaware Trustee shall not be personally liable Related Document under any circumstances, except that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as applicable, shall be answerable or accountable hereunder (i) for its own willful misconduct or gross negligence, (ii) in the case of the inaccuracy of any representation or warranty given by it contained in Section 7.3 hereof, (iii) for liabilities arising from its failure to perform obligations expressly undertaken by it in the last sentence of Section 6.4 hereof, (iv) for any investments issued by it or any branch or affiliate thereof in its commercial capacity and (v) for taxes, fees or other charges on, based on or measured by, any fees, commissions or compensation received by it in connection with any of the transactions contemplated by this Agreement or any Related Document. In particular, but not by way of limitation: limitation (iand subject to the exceptions set forth in the preceding sentence):
(a) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall not be personally liable for any error of judgment made in good faith; faith by an authorized officer of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, respectively;
(iib) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be liable with respect to any action taken or omitted to be taken by either in good faith in accordance with the instructions of the Instructing Party;
(c) no provision of this Declaration Agreement or any Related Document shall require the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers hereunder, hereunder or under any Related Document if the Delaware Trustee they shall have reasonable grounds for believing that the payment repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; them;
(iiid) under no circumstances shall the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee be personally liable for indebtedness evidenced by or arising under this Agreement or any representation, warranty, covenant, agreement or indebtedness of the Trust; Related Documents, including the principal of and interest and any Carryover Interest on the Notes;
(ive) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Declaration or for the due execution hereof by any other party hereto; (v) the Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolution, signed by a Trustee or an officer of the Trust as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; (vi) in the exercise or administration of the Trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (B) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; (vii) in accepting and performing its express duties hereunder the Delaware Trustee acts solely as Delaware Trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration shall look only to the Trust for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.this
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Concerning the Delaware Trustee. (a) The Delaware Trustee shall not have any duty or liability with respect to the administration of the Trust, the investment of the Trust’s property or the payment of dividends or other distributions of income or principal to the Trust’s beneficiaries, and no implied obligations shall be inferred from this Trust Agreement on the part of the Delaware Trustee. The Delaware Trustee is appointed to serve as the a trustee of the Trust in the State of Delaware for the sole purpose purposes of satisfying fulfilling the requirement pursuant to requirements of Section 3807(a) 3807 of the DSTA that the Trust have at least one trustee which has its principal place of business in the State of DelawareAct. The Trust shall have at least one other trustee duties (other than the Delaware Trustee) to perform all including fiduciary duties), liabilities and obligations and duties other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the DSTA.
(b) The duties of the Delaware Trustee shall be limited to the following (icollectively, the “Trustee Duties”): (a) accepting legal process served on the Trust in the State of Delaware and (iib) the execution of any certificates required to be filed with the Delaware Secretary of State which of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the DSTA. Except for the purpose of the foregoing sentenceAct, the Delaware Trustee and there shall not be deemed a Trusteeno other duties (including fiduciary duties) or obligations, shall not be a member of the Board of Trustees and shall have no management responsibilities express or owe any fiduciary duties to the Trust or its shareholders. To the extent thatimplied, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or its shareholders, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Declaration. The Delaware Trustee shall have no liability for the acts or omissions of any other person, including, without limitation, the Trustees.
(c) The Delaware Trustee may be removed by the Trustee upon 30 days’ prior written notice to the Delaware Trustee. The Delaware Trustee may resign upon 30 days’ prior written notice to the Trustee. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee appointed by the Trustee or a court of competent jurisdiction. If no successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee may, at the expense of the Trust, petition a court of competent jurisdiction to appoint a successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be consolidated, or any person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Declaration of Trust without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Declaration of Trust and with respect to the Trust and the Shareholders as the Trustee. No amendment or waiver of any provision of this Declaration which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.
(f) The Delaware Trustee shall not be liable for supervising the acts or monitoring omissions of the performance and Beneficial Owner nor shall the duties and obligations Delaware Trustee be liable for any act or omission by it in good faith in accordance with the directions of any other Person, including, without limitation, the Trustees, the Trust’s administrator or investment adviser or the Trust under this Declaration or any related documentBeneficial Owner.
(gb) The Delaware Trustee agrees to perform its duties hereunder with respect to the same but only upon the terms of this Trust Agreement. The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct or gross negligence. In particular, but not by way of limitation: :
(i) the The Delaware Trustee shall not be personally liable for any error of judgment made in good faith; faith by an officer or employee of the Delaware Trustee;
(ii) no No provision of this Declaration Trust Agreement shall require the Delaware Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of its rights or powers duties hereunder, if the Delaware Trustee shall have reasonable grounds for believing that the payment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; ;
(iii) under Under no circumstances circumstance shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement covenant or indebtedness of the Trust; ;
(iv) the The Delaware Trustee shall not be personally responsible for or in respect of the genuineness, form or value of the Trust property, the validity or sufficiency of this Declaration Trust Agreement or for the due execution hereof by any other party hereto; the Beneficial Owner;
(v) In the event that the Delaware Trustee is unsure of the course of action to be taken by it hereunder, the Delaware Trustee may request instructions from the Beneficial Owner and to the extent the Delaware Trustee follows such instructions in good faith it shall not be liable to any person or entity. In the event that no instructions are provided within the time requested by the Delaware Trustee, it shall have no duty or liability for its failure to take any action or for any action it takes in good faith;
(vi) While it is not expected that any funds will be deposited with the Delaware Trustee, if any funds are deposited with the Delaware Trustee hereunder, the same may be held in a non-interest bearing trust account and the Delaware Trustee shall not be liable for any interest thereon or for any loss as a result of the investment thereof at the direction of the Beneficial Owner; and
(vii) To the extent that, at law or in equity, the Delaware Trustee has duties and liabilities relating thereto to the Beneficial Owner or the Trust, the Beneficial Owner agrees that such duties and liabilities are replaced in their entirety by the terms of this Trust Agreement.
(c) The Delaware Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate or resolutioncertificate, signed by a Trustee or an officer of the Trust Beneficial Owner, as to such fact or matter, and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon; .
(vid) in In the exercise or administration of the Trust hereunderin accordance with the terms of this Trust Agreement, the Delaware Trustee (Ai) may act directly or or, at the expense of the Trust, through agents or attorneys pursuant to agreements entered into with any of themattorneys, and the Delaware Trustee shall not be liable for the default or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith faith, and (Bii) may may, at the expense of the Trust, consult with counsel, accountants and other skilled persons to be selected by it in good faith and employed by itexperts, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons; experts.
(viie) Except as expressly provided in accepting and performing its express duties hereunder this Section 2, the Delaware Trustee acts solely as Delaware Trustee trustee hereunder and not in its individual capacity, and all persons and entities having any claim against the Delaware Trustee by reason of the transactions contemplated by this Declaration Trust Agreement shall look only to the Trust Trust’s property for payment or satisfaction thereof; and (viii) the Delaware Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, act of war or terrorism, or other circumstances beyond its reasonable control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Declaration provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Declaration.
(h) In the event of the appointment of a successor Delaware Trustee, such successor shall cause an amendment to the certificate of trust of the Trust to be filed with the Secretary of State of Delaware in accordance with Section 3810 of the DSTA, indicating the change of the Delaware Trustee’s identity.
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