Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]. (b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. (c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 4 contracts
Samples: Trust Agreement (iShares GS Commodity Livestock Indexed Investing Pool LLC), Trust Agreement (iShares GS Commodity Industrial Metals Indexed Investing Pool LLC), Trust Agreement (iShares GS Commodity Light Energy Indexed Investing Pool LLC)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years Notwithstanding any other provision of age and a resident of ---------------- this Trust Agreement other than Section 6.2, the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 4 contracts
Samples: Trust Agreement (Dominion Resources Inc /Va/), Trust Agreement (Dominion Resources Inc /Va/), Trust Agreement (CSX Capital Trust 1)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The Subject to the foregoing, the duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ ' advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegees and agents (the "Delaware Trustee Indemnified Persons") against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Administrative Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 3 contracts
Samples: Trust Agreement (iShares S&P GSCI Commodity-Indexed Trust), Trust Agreement (iShares S&P GSCI Commodity-Indexed Trust), Trust Agreement (iShares S&P GSCI Commodity-Indexed Investing Pool LLC)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegates and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Trust Agreement, (ii) acts performed or omitted pursuant to the provisions of this Trust Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Trust Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 3 contracts
Samples: Trust Agreement (iShares Dow Jones-Ubs Roll Select Commodity Index Trust), Trust Agreement (Ishares Diversified Alternatives Trust), Trust Agreement (Ishares Diversified Alternatives Trust)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 3 contracts
Samples: Trust Agreement (iShares GS Commodity Natural Gas Indexed Investing Pool LLC), Trust Agreement (iShares GSCI Commodity-Indexed Investing Pool LLC), Trust Agreement (iShares GS Commodity Energy Indexed Investing Pool LLC)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Secretary Trustee shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(a) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to the administration of State the Trust, the investment of any of the Trust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(b) The Delaware Trustee shall not be liable for the acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee shall not be liable for any error of judgment made in good faith by a responsible officer of the Delaware Trustee unless it is proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is required not reasonably assured or provided to execute it;
(iii) under Section 3811 no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or indebtedness of the ActTrust;
(iv) the Delaware Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 there the Delaware Trustee shall not be no liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other duties skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(including fiduciary dutiesvii) or obligationsexcept as expressly provided in this Section 10.6, express or impliedin accepting and performing the trust hereby created, at law or BNY Mellon Trust of Delaware acts solely as Delaware Trustee hereunder and not in equityits individual capacity, and all Persons having any claim against the Delaware Trustee by reason of the Delaware Trusteetransactions contemplated by this Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(c) The Delaware Trustee (or any successor trustee) shall serve until be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time as the Sponsor removes to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee resigns and a successor pursuant to Article VIII.
(d) The Delaware Trustee is appointed by shall serve for the Sponsor in accordance with duration of the terms Trust and until the earlier of this Section 5.19(i) the effective date of the Delaware Trustee’s resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days’ written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section 10.6, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(e) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 2 contracts
Samples: Trust Agreement (CarMax Auto Owner Trust 2012-2), Trust Agreement (CarMax Auto Owner Trust 2012-1)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein11.1.1. The Delaware Trustee shall be constitute one of the Trustees trustees of the Liquidation Trust for the sole and limited purpose of fulfilling satisfying the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee under Act, shall have only the Act. The duties (including fiduciary duties), rights, obligations and liabilities specifically provided for in this Agreement and the Delaware Act, and shall have no implied duties (including fiduciary duties), rights, obligations or liabilities with respect to the business and affairs of the Liquidation Trust. The Delaware Trustee shall not participate in any decisions relating to, or possess any authority independently to manage or control, the business and affairs of the Liquidation Trust. The Delaware Trustee may, and hereby is authorized to, take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Liquidation Trustee from time to time (upon which the Delaware Trustee shall be entitled to conclusively and exclusively rely); provided, however, that the Delaware Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is reasonably likely to subject the Delaware Trustee to personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Liquidation Trust or the Delaware Trustee is a party or is otherwise contrary to law. Notwithstanding anything to the contrary hereunder, the duties, liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Liquidation Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Delaware Act at the written direction of the Liquidation Trustee and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as . To the Sponsor removes extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Liquidation Trust, the other parties hereto or any beneficiary of the Liquidation Trust, 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 resigns and a successor expressly set forth in this Section 11.1.1.
11.1.2. So long as required by the Delaware Act, there shall be one (1) Delaware Trustee who or which shall be (i) a natural person who is appointed by a resident of the Sponsor State of Delaware or (ii) if not a natural person, an entity that has its principal place of business in accordance with the terms State of this Section 5.19Delaware, otherwise meets the requirements of applicable law, and shall act through one or more persons authorized to bind such entity.
11.1.3. The Delaware Trustee may resign at any time upon and, if at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 11.1, it shall resign immediately, by giving of at least sixty (60) days’ advance written notice thereof to the Administrative Liquidation Trustee; provided. If the Delaware Trustee shall resign, that the Liquidation Trustee shall promptly appoint a successor Delaware Trustee, and such successor Delaware Trustee and the resigning Delaware Trustee shall execute and deliver an instrument to effect such resignation and appointment, and thereupon the resignation of the resigning Delaware Trustee shall not become effective unless and until a the successor Delaware Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and obligations of the resigning Delaware Trustee. If no successor Delaware Trustee shall have been so appointed by and have accepted appointment within forty-five (45) days after the Sponsor giving of such notice of resignation, the resigning Delaware Trustee may, at the expense of the Liquidation Trust, petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Upon the appointment of a successor Delaware Trustee, such successor Delaware Trustee shall file a certificate of amendment to the certificate of trust of the Liquidation Trust in accordance withwith Section 3810 of the Delaware Act.
Appears in 2 contracts
Samples: Liquidation Trust Agreement (Woodbridge Liquidation Trust), Liquidation Trust Agreement
Delaware Trustee. (a) The If required by the Delaware Trustee Act, one trustee (the “Delaware Trustee”) shall either be be: (i1) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware; or (ii2) if not a legal natural person, an entity that which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, including Section 3807 of the Delaware law and Act.
(b) The Delaware Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. officers.
(c) The initial Delaware Trustee shall be [ ]Wilmington Trust Company, whose offices are located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Corporate Trust Administration.
(bd) The Notwithstanding any other provision of this Agreement, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of any of the Administrative Trustee or Trustees described in this Agreement and the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties .
(including fiduciary duties), liabilities and obligations e) No resignation or removal of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State and no appointment of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the a Successor Delaware Trustee is required pursuant to execute under Section 3811 this Agreement shall become effective until the acceptance of appointment by the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Successor Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms applicable requirements of this Section 5.19. The Article.
(f) Subject to the immediately preceding paragraph, the Delaware Trustee may resign at any time by giving written notice thereof to the Board of Trustees and to the Board of Directors of NYSE Euronext. Such resignation shall be effective upon the giving appointment of at least a successor Delaware Trustee (the “Successor Delaware Trustee”) by the Board of Directors of NYSE Euronext, which appointment shall require that the Successor Delaware Trustee execute an instrument of acceptance required by Section 3.3(h). If the instrument of acceptance by the Successor Delaware Trustee required by this Section 3.3 shall not have been delivered to the Successor Delaware Trustee within sixty (60) days’ advance written days after the giving of such notice of resignation, the Successor Delaware Trustee may petition, at the expense of the Trust, any court of competent jurisdiction for the appointment of a Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint the Successor Delaware Trustee.
(g) The Successor Delaware Trustee may be removed with or without cause by the Board of Directors of NYSE Euronext, in each case by delivery of notification of removal to the Administrative Delaware Trustee and to the Board of Trustees. A Delaware Trustee who is a natural person may also be removed by the Board of Directors of NYSE Euronext if such Delaware Trustee becomes incompetent or incapacitated, and shall be deemed removed if such Delaware Trustee dies.
(h) In the case of the appointment hereunder of a Successor Delaware Trustee, the retiring Delaware Trustee (except in the case of the death, incompetence or incapacity of a Delaware Trustee who is a natural person) and each Successor Delaware Trustee shall execute and deliver an amendment hereto wherein each Successor Delaware Trustee shall accept such appointment and which shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each Successor Delaware Trustee all the rights, powers, and duties of the retiring Delaware Trustee with respect to the Trust; it being understood that nothing herein or in such amendment shall designate such Delaware Trustees as co-Trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Delaware Trustee shall become effective to the extent provided therein and each such successor Delaware Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, and duties of the retiring Delaware Trustee; but, on request of the Trust or any successor Delaware Trustee, such retiring Delaware Trustee shall duly assign, transfer and deliver to such successor Delaware Trustee all property of the Trust, all proceeds thereof and money held by such retiring Delaware Trustee hereunder with respect to the Trust. Any Successor Delaware Trustee shall file an amendment to the certificate of trust with the Delaware Secretary of State reflecting the name and address of such Successor Delaware Trustee in the State of Delaware.
(i) Any Person into which the Delaware Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Delaware Trustee, as the case may be, shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto (other than the filing of an amendment to the certificate of trust if required by the Delaware Act); provided, that such resignation Person shall not become effective unless be otherwise qualified and until a successor eligible under this Article.
(j) The initial Delaware Trustee shall have represents and warrants to the Trust and each of the other parties at the date of this Agreement, and each Successor Delaware Trustee represents and warrants to the Trust at the time of the Successor Delaware Trustee’s acceptance of its appointment as Delaware Trustee, that:
(i) the Delaware Trustee, if other than an individual, is duly organized, validly existing and in good standing under the laws of the State of Delaware, with power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Agreement;
(ii) the Delaware Trustee has been appointed by authorized to perform its obligations under this Agreement. This Agreement under Delaware law constitutes a legal, valid and binding obligation of the Sponsor Delaware Trustee, enforceable against it in accordance withwith its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors’ rights generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law); and
(iii) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Trust the requirements of Section 3807 of the Delaware Act.
Appears in 2 contracts
Samples: Trust Agreement (IntercontinentalExchange Group, Inc.), Trust Agreement (NYSE Euronext)
Delaware Trustee. (a) The Delaware Trustee is appointed, on the terms and conditions set forth in that certain “Agreement to Serve as Delaware Trustee” by and between the Trust and the Delaware Trustee effective as of _______________, 2021 (as amended from time to time, the “Staffing Agreement”), for purposes of satisfying section 3807(a) of the Act. The Delaware Trustee shall either be (iserve the Trust solely to fulfill the Trust’s obligation pursuant to Section 3807(a) a natural person who is of the Act to have at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that trustee who has its principal place of business in the State of Delaware, otherwise meets and the requirements of applicable Delaware law and Trust shall act through have at least one or more persons authorized to bind such entity. If at any time other trustee other than the Delaware Trustee shall cease to be eligible in accordance with perform all obligations and duties other than fulfilling the provisions Trust’s obligations pursuant to Section 3807(a) of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Act.
(b) The It is understood and agreed by the parties hereto that the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any none of the duties and responsibilities, or liabilities of the Administrative Trustee and that all references to “Trustee” herein refer solely to the person or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required entity so designated pursuant to be taken by a Delaware trustee under the ActSections 3.01, 3.02 or 3.03 above. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State that which the Delaware Trustee is required to execute under Section 3811 execute, and (iii) any other duties specifically allocated to the Delaware Trustee in the Trust Agreement. The Delaware Trustee shall not have any duty or obligation to manage or deal with the Trust’s property, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Delaware Trustee is a party, except as expressly provided by the terms of this Trust Agreement, and no implied duties or obligations shall be read herein against Delaware Trustee, including without limitation that no action requested of Delaware Trustee shall require the performance of any investigation, analysis, or other due diligence activities by Delaware Trustee in respect to such action or the performance of its duties on behalf of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware TrusteeTrust generally.
(c) The Delaware Trustee shall serve until such time as not be liable to the Sponsor removes Trust or its beneficiaries for any of its acts or omissions except for acts or omissions constituting bad faith or willful misconduct. Pursuant to Section 3803(b) of the Act, the Delaware Trustee shall not be liable to any person other than the Trust or a beneficiary of the Trust for any act, omission or obligation of the Trust or any trustee thereof and all persons having any claim against the Delaware Trustee resigns and a successor Delaware Trustee is appointed by reason of the Sponsor in accordance with the terms of transactions contemplated by this Section 5.19. The Delaware Trustee may resign at Trust Agreement or any time upon the giving of at least sixty (60) days’ advance written notice other agreement or instrument related to the Administrative Trustee; provided, that such resignation Trust shall not become effective unless and until a successor Delaware Trustee shall have been appointed by look only to the Sponsor in accordance withTrust’s property for payment or satisfaction thereof.
Appears in 2 contracts
Samples: Trust Agreement (iCross Premiere LLC), Trust Agreement (iCross Premiere LLC)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, The Bank of New York (Delaware) 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article VIII.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee’s resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days’ written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 2 contracts
Samples: Trust Agreement (CarMax Auto Owner Trust 2008-2), Trust Agreement (CarMax Auto Owner Trust 2008-1)
Delaware Trustee. (a) The So long as required by the Delaware Act, there shall be one (1) Delaware Trustee who or which shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) if not a legal natural person, an entity that has its principal place of business in the State of Delaware, Delaware and otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19law. The initial Delaware Trustee shall be [ ]Wilmington Trust, National Association.
(b) The Delaware Trustee shall not be entitled is appointed to exercise any powers, nor shall serve as the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustee of the Trust in the State of Delaware for the sole and limited purpose of fulfilling satisfying the requirements requirement of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. It is understood and agreed by the parties hereto that the Delaware Trustee shall have none of the duties or liabilities of any other Trustee of the Trust or any administrator of the Trust or any other Person. The duties (including fiduciary duties), liabilities and obligations authority, of the Delaware Trustee shall be limited to (ia) accepting legal process served on the Trust in the State of Delaware and Delaware, (iib) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the ActDelaware Act and (c) as directed by the Regular Trustee, executing and there shall delivering on behalf of the Trust, any documents required by the Federal Aviation Administration to be no other duties (including fiduciary duties) or obligations, express or impliedexecuted by a United States citizen. 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 the Beneficial Owners, 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 TrusteeTrustee expressly set forth in this Agreement. The Delaware Trustee shall have no duty or liability with respect to the administration of the Trust or the payment of any amounts to the Beneficial Owners.
(c) The Delaware Trustee shall serve until such time not be permitted to resign from its position as the Sponsor removes the Delaware Trustee or unless (i) at least 60 days prior written notice has been provided to the Delaware Trustee resigns Trust and (ii) a successor Delaware Trustee is has been appointed by the Sponsor in accordance with Regular Trustee. If the terms of this Section 5.19. The Delaware Regular Trustee may resign at any time upon the giving of at least does not act within such sixty (60) day period, the Delaware Trustee may apply, at the Trust’s expense, to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee. Notwithstanding anything to the contrary herein, if any amounts shall be due and owing to the Delaware Trustee hereunder and remain unpaid for more than ninety (90) days’ advance written , the Delaware Trustee shall immediately be entitled to resign by notice to the Administrative Beneficial Owners. The Regular Trustee shall be permitted to remove the Delaware Trustee with or without cause at any time. Upon the Delaware Trustee; provided’s resignation or removal, that such the Regular Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Delaware Act. Any resignation shall not become effective unless or removal of the Delaware Trustee and until appointment of a successor Delaware Trustee shall have been appointed not become effective until any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the outgoing Delaware Trustee’s rights, powers, duties and obligations under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement.
(d) The Regular Trustee shall reasonably keep the Delaware Trustee informed of any actions taken by the Sponsor Regular Trustee or the Series Two Trustee with respect to the Trust or any Series that would reasonably be expected to affect the Delaware Trustee’s rights, obligations or liabilities hereunder or under the Delaware Act.
(e) The Delaware Trustee shall be entitled to receive from the Trust reasonable compensation for its services hereunder as set forth in accordance witha separate fee agreement and shall be entitled to be reimbursed by the Trust for reasonable out-of-pocket expenses incurred by it in the performance of its duties hereunder, including the reasonable compensation, out-of-pocket expenses and disbursements of counsel and such other agents as the Delaware Trustee may employ in connection with the exercise and performance of its rights and duties hereunder.
Appears in 2 contracts
Samples: Trust Agreement (AerCap Global Aviation Trust), Trust Agreement (AerCap Holdings N.V.)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Directors shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Directors set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any trustee or any Director. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Directors or any other person pursuant to the provisions of this Trust Agreement unless the Directors or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Directors and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Directors. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Directors remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Directors in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeDirectors; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Directors in accordance with Section 5.10(d) below; provided, further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Directors. If the Directors do not act within such sixty (60) -day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Directors shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Directors, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT VI in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the Parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for, nor have any duty to monitor, the performance or any action of the Trust, the Directors or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused directly or indirectly by, circumstances beyond its control, including, without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ ]Wilmington Trust, National Association.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegees and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 2 contracts
Samples: Trust Agreement (iShares Dow Jones-Ubs Roll Select Commodity Index Trust), Trust Agreement (iShares Dow Jones-Ubs Roll Select Commodity Index Trust)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegates and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 2 contracts
Samples: Trust Agreement (Ishares Diversified Alternatives Trust), Trust Agreement (Ishares Diversified Alternatives Trust)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust's compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, The Bank of New York (Delaware) 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article 8.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee's resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance days written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 2 contracts
Samples: Trust Agreement (Carmax Auto Funding LLC), Trust Agreement (Pooled Auto Securities Shelf LLC)
Delaware Trustee. (a) The Delaware Trustee shall either constitute one of the trustees of the Liquidating Trust for the sole and limited purpose of Section 3807(a) of the Delaware Act, shall have only the duties (including fiduciary duties), rights, obligations and liabilities specifically provided for in this Agreement and the Delaware Act, and shall have no implied duties (including fiduciary duties), rights, obligations or liabilities with respect to the business and affairs of the Liquidating Trust. The Delaware Trustee shall not participate in any decisions relating to, or possess any authority independently to manage or control, the business and affairs of the Liquidating Trust. The Delaware Trustee may, and hereby is authorized to, take such action or refrain from taking such action under this Agreement as may be directed in writing by the Liquidating Trust Board from time to time; provided, however, that the Delaware Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such action is reasonably likely to subject the Delaware Trustee to personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Liquidating Trust or the Delaware Trustee is a party or is otherwise contrary to law.
(b) So long as required by the Delaware Act, there shall be one (1) Delaware Trustee who or which shall be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) if not a legal natural person, an entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If .
(c) The Delaware Trustee may resign or be removed by the Liquidating Trust Board at any time and, if at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19Section, it shall resign immediately in immediately, by giving written notice thereof to the manner and with Liquidating Trust Board. If the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall resign or be [ ].
(b) The removed, the Liquidating Trust Board shall promptly appoint a successor Delaware Trustee, and such successor Delaware Trustee and the resigning or removed Delaware Trustee shall not be entitled execute and deliver an instrument to exercise any powers, nor shall effect such change in identity of the Delaware Trustee have any Trustee, and thereupon the resignation of the duties and responsibilities, of the Administrative Trustee resigning or the Sponsor that are set forth herein. The removed Delaware Trustee shall be one of become effective and the Trustees of successor Delaware Trustee, without any further act, deed or conveyance, shall become vested with all the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties)rights, liabilities powers, trusts and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the predecessor Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a If no successor Delaware Trustee shall have been so appointed by and have accepted appointment within forty-five (45) days after the Sponsor giving of a notice of resignation, a resigning Delaware Trustee may, at the expense of the Liquidating Trust Board, petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Upon the appointment of a successor Delaware Trustee, such successor Delaware Trustee shall file a certificate of amendment to the Certificate of Trust of the Liquidating Trust in accordance withwith Section 3810 of the Delaware Act.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19section 4.13, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19section 4.13(c) below. The initial For the avoidance of doubt, the Delaware Trustee will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder. Any reference to a “Trustee” shall be [ ].not include the Delaware Trustee unless specifically indicated
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PI Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the DST Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the DST Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PI Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, DST Act (acting solely at the written direction of the Trustee) and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust, the other parties hereto or any beneficiary of the Trust, 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 Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of the Trustee or any other Person. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for the same other than in the event of its gross negligence, willful misconduct, or fraud. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustee and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee provided that the Delaware Trustee has acted in accordance with the written direction of the Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.19section 4.13(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance with section 4.13(d) below. If the Trustee does not act within such 60-day period, the Delaware Trustee may apply (at the sole cost and expense of the Trust) to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee. In the event that any amounts due and owing to the Delaware Trustee under this Trust Agreement remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign on thirty (30) days’ notice regardless of whether a successor Delaware Trustee has been appointed.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the then-serving Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the DST Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the then-serving Delaware Trustee and the Trustee and any fees and expenses due to the then-serving Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties, and obligations of the then-serving Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the then- serving Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the DST Act, including filing a Certificate of Amendment to the Certificate of Trust of the PI Trust in accordance with Section 3810 of the DST Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Trustee or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust asset, written instructions, or any other documents in connection therewith, and will not be regarded as making nor be required to make, any representations thereto.
(g) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this ---------------- Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Samples: Trust Agreement (Markel Corp)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, The Bank of New York (Delaware) 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article VIII.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee’s resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance days written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, [ ] 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article VIII.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee’s resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days’ written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section 10.6, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 1 contract
Delaware Trustee. (a) The business address of the Delaware Trustee in Delaware is 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust. The Delaware Trustee shall either be is appointed to serve as the trustee of the Trust in Delaware for the sole purpose of satisfying the requirements of Section 3807 of the Delaware Statutory Trust Act, 12 Del. C. § 3801, as amended from time to time (ithe “Act”) that the Trust have one trustee, which, is in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one entitled to receive customary fees for its services. It is understood and agreed by the parties hereto that the Delaware Trustee shall have none of the Trustees rights, duties or liabilities of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the ActOperating Trustees. The rights and duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (ia) accepting legal process served on it with respect to the Trust in the State of Delaware and (iib) executing the execution of any certificates required to be filed with the Delaware Secretary of State that which the Delaware Trustee is required to execute under Section 3811 of the Act. Except for the purpose of the foregoing sentence, the Delaware Trustee shall not be deemed a trustee and there shall have no management responsibilities or owe any fiduciary duties to the Trust, the Operating Trustees, the Grantor, or the Beneficiaries; provided that nothing herein shall be no other duties (including fiduciary duties) or obligations, express or implieddeemed an attempt to eliminate the implied contractual covenant of good faith and fair dealing. 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 Grantor, it is hereby understood and agreed by the parties hereto, including Grantor, that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee.
(c) Trustee expressly set forth in this Agreement. The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Operating Trustees, nor shall the Delaware Trustee be liable for supervising or monitoring the performance and the duties and obligations of the Operating Trustees or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of Trust under this Section 5.19Agreement or any other agreement. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor be personally liable under any circumstances, except for its own gross negligence, willful misconduct or bad faith. The Delaware Trustee shall have been appointed by and the Sponsor in accordance withOperating Trustees are referred to herein collectively as the “Trustees” and each individually as a “Trustee.”
Appears in 1 contract
Samples: Interim Trust Agreement (Air T Inc)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Statutory Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Trustees shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the NOAT II Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustees or any other person pursuant to the provisions of this Trust Agreement unless the Trustees or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustees and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustees. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance with Section 5.10(d) below; provided further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustees. If the Trustees do not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the Trust in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Trustees or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not, be regarded as making nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The If required by the Delaware Trustee Act, one trustee (the “Delaware Trustee”) shall either be be: (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware; or (ii) if not a legal natural person, an entity that which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, including Section 3807 of the Delaware law and Act.
(b) The Delaware Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. officers.
(c) The initial Delaware Trustee shall be [ ]Wilmington Trust Company, whose offices are located at Xxxxxx Square North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration.
(bd) The Notwithstanding any other provision of this Agreement, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of any of the Administrative Trustee or Trustees described in this Agreement and the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust a trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties .
(including fiduciary duties), liabilities and obligations e) No resignation or removal of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State and no appointment of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the a Successor Delaware Trustee is required pursuant to execute under Section 3811 this Agreement shall become effective until the acceptance of appointment by the Act, and there shall be no other duties (including fiduciary duties) Success or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms applicable requirements of this Article.
(f) Subject to Section 5.19. The 3.3(e), the Delaware Trustee may resign at any time by giving written notice thereof to the Board of Trustees and to the ISE Holdings Board. Such resignation shall be effective upon the appoi ntment of a successor Delaware Trustee (the “Successor Delaware Trustee ”) by the ISE Holdings Board, which appointment shall require that the Successor Delaware Trustee execute an instrument of acceptance required by this Section 3.3. If the instrument of acceptance by the Successor Delaware Trustee required by this Section 3.3 shall not have been delivered to the resigning Delaware Trustee within 60 days after the giving of such notice of resignation, the resigning Delaware Trustee may petition, at least sixty the expense of the Trust, any court of compe tent jurisdiction for the appointment of a Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint the Successor Delaware Trustee.
(60g) days’ advance written notice The Delaware Trustee and each Successor Delaware Trustee may be removed with or without Cause by the ISE Holdings Board by delivery of notification of removal to the Administrative Delaware Trustee and to the Board of Trustees. A Delaware Trustee who is a natural person may also be removed by the ISE Holdings Board if such D elaware Trustee becomes incompetent or incapacitated, and shall be deemed removed if such Delaware Trustee dies. In the event of the removal of the Delaware Trustee or any Successor Delaware Trustee or in the event that the Person at any time serving as a Delaware Trustee shall cease to serve in such capacity for any other reason, the ISE Holdings Board shall appoint a Successor Delaware Trustee, which appointment shall require that the Successor Delaware Trustee execute an instrument of acceptance required by this Section 3.3.
(h) In the case of the appointment hereunder of a Successor Delaware Trustee, the retiring Delaware Trustee (except in the case of the death, incompetence or incapacity of a Delaware Trustee who is a natural person) and each Successor Delaware Trustee shall execute and deliver an amendment hereto wherein each Successor Delaware Trustee shall accept such appointment and which shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each Successor Delaware Trustee all the rights, powers, and duties of the retiring Delaware Trustee with respect to the Trust; it being understood that nothing herein or in such amendment shall designate such Delaware Trustee as a Trustee and upon the execution and delivery of such amendment the resignation or removal of the retiring Delaware Trustee shall become effective to the extent provided therein an d each such successor Delaware Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, and duties of the retiring Delaware Trustee; but, on request of the Trust or any Successor Delaware Trustee, such retiring Delaware Trustee shall duly assign, transfer and deliver to such Successor Delaware Trustee all property of the Trust, all proceeds thereof and money held by such retiring Delaware Trustee hereunder with respect to the Trust. Upon the appointment of a Successor Delaware Trustee, a Trustee shall file an amendment to the certificate of trust with the Delaware Secretary of State reflecting the name and address of such Successor Delaware Trustee in the State of Delaware.
(i) Any Person into which the Delaware Tru stee may be merged or converted, or any Person resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto (other than the filing of an amendment to the certificate of trust if required by the Delaware Act); provided, that such resignation Person shall not become effective unless be otherwise qualified and until a successor eligible under this Article.
(j) The initial Delaware Trustee shall have represents and warrants to the Trust and each of the other parties at the date of this Agreement, and each Successor Delaware Trustee represents and warrants to the Trust at the time of such Successor Delaware Trustee’s acceptance of its appointment as Delaware Trustee, that:
(i) the Delaware Trustee, if other than a natural person, is duly organized, validly existing and in good sta nding under the laws of the State of Delaware, with power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Agreement;
(ii) the Delaware Trustee has been appointed by authorized to perform its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Sponsor Delaware Trustee, enforceable against it in accordance withwith its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors’ rights generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law); and
(iii) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural perso n, an entity that has its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Trust the requirements of Section 3807 of the Delaware Act.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ ]Wilmington Trust, National Association.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ ' advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegees and agents (the "Delaware Trustee Indemnified Persons") against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 1 contract
Samples: Trust Agreement (iSHARES COMMODITY OPTIMIZED TRUST)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years Notwithstanding any other provision of age and a resident of ---------------- this Trust Agreement other than Section 6.2, the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Trustees described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Bank One Delaware, Inc., or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Bank One Delaware, Inc., or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Bank One Delaware, Inc., or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, BNY Mellon Trust of Delaware 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article VIII.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee’s resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance written notice to the Administrative TrusteeAdministrator and the Depositor; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days’ written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section 10.6, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 1 contract
Delaware Trustee. If required by the Business Trust Act, one Trustee, which shall be the Delaware Trustee, shall be:
(a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or Delaware; or
(iib) if not a legal natural person, an entity that which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, provided that, if the Property Trustee has its principal place of business in the State of Delaware law and otherwise meets the requirements of applicable law, then the Property Trustee shall act through one or more persons authorized to bind such entity. If at any time also be the Delaware Trustee and Section 3.11 shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19have no application. The initial Delaware Trustee shall be: [First Union Bank of Delaware.] In the event that a national banking association, with the name "[First Union Trust Company, National Association]" or any other name, succeeds, as contemplated, to all or substantially all the corporate trust business of [First Union Bank of Delaware], such successor entity shall automatically be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required deemed to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The , effective as of the consummation of such succession, with the same effect as if it had executed this Declaration on the Closing Date, upon delivery to the Sponsor and the Regular Trustees of an instrument, in form and substance reasonably satisfactory to the Sponsor and the Regular Trustees, accepting the responsibilities hereunder as Delaware Trustee shall serve until such time and agreeing to be bound by all of the provisions hereof applicable to the Delaware Trustee, and thereupon [First Union Bank of Delaware] will automatically be deemed to have resigned as the Sponsor removes Delaware Trustee, effective as of the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms consummation of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withsuccession.
Appears in 1 contract
Samples: Exchange Agreement (Insignia Financial Group Inc /De/)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets satisfy the requirements of applicable Delaware law and shall act through one Section 3807(a) of the Act (or more persons authorized any successor section) as in effect from time to bind such entitytime. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder no reference in this U.S. Asbestos Trust Agreement to the Trustees shall be [ ]construed to refer to or include the Delaware Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the U.S. Asbestos Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the U.S. Asbestos Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) 60 days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d) below. If the Trustees have not appointed a successor Delaware Trustee within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807(a) of the Act (or any successor section) as in effect from time to time. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this U.S. Asbestos Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this U.S. Asbestos Trust Agreement.
Appears in 1 contract
Samples: Trust Agreement (Federal-Mogul Corp)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years address of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19Delaware is Wilmington Trust Company, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers1000 Xxxxx Xxxxxx Xxxxxx, nor shall the Delaware Trustee have any of the duties and responsibilitiesXxxxxxxxxx, of the Administrative Trustee or the Sponsor that are set forth hereinXxxxxxxx 00000. The Delaware Trustee shall be one of is appointed to serve as the Trustees trustee of the Trust in Delaware for the sole and limited purpose of fulfilling satisfying the requirements of Section 3807 of the Trust Act that the Trust have at least one trustee with a principal place of business in Delaware. The Delaware Trustee accepts the Trust hereby created and agrees to perform its duties hereunder with respect to the Trust but only upon the terms of this Agreement. It is understood and agreed by the parties hereto that the Delaware Trustee shall have only the rights, obligations and liabilities specifically provided for herein and in the Trust Act and shall have no implied rights, obligations and liabilities with respect to the affairs of the Trust. Notwithstanding any other provision contained herein, unless specifically directed by the Grantor and consented to by the Delaware Trustee, the Delaware Trustee shall not participate in any decisions relating to, or possess any authority independently to manage or control, the business of the Trust. In no event shall the Delaware Trustee have any liability for taking such actions as are required to be taken by a Delaware trustee under the Actacts or omissions of the Grantor. The rights and duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution, delivery, acknowledgement and filing of any certificates documents necessary to form and maintain the Trust as required to be filed with by the Delaware Secretary of State that Trust Act. To the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or impliedextent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or Grantor, it is hereby understood and agreed by the parties hereto, including Grantor, that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee.
(c) Trustee expressly set forth in this Agreement. The Delaware Trustee Grantor shall serve until such time as the Sponsor removes reasonably keep the Delaware Trustee informed of any actions taken by the Grantor with respect to the Trust that affect the rights, obligations or liabilities of the Delaware Trustee resigns and a successor Delaware Trustee is appointed by hereunder or under the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withTrust Act.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (Time Warner Cable Inc.)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.9(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties (including fiduciary duties) and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Delaware Trustee shall be [ ]have no liability for the acts or omissions of any Delaware Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of the Trustee. The Delaware Trustee undertakes to perform such duties and only such duties as are specifically and expressly set forth in this Trust Agreement. These duties shall be deemed purely ministerial in nature, and the Delaware Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustee or any other person pursuant to the provisions of this Trust Agreement unless the Trustee or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustee and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustee. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.195.9(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance with Section 5.9(d) below; provided further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustee. If the Trustee does not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Bankruptcy Court or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the Trust in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Trustee or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligationsrelating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not, be regarded as making nor be required to make, any representations thereto.
(h) The Delaware Trustee shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been negligent in ascertaining the pertinent facts. Nothing in this Trust Agreement shall require the Delaware Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. In no event shall the Delaware Trustee be responsible or liable for special, indirect, punitive, incidental or consequential losses or damages of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Delaware Trustee has been advised of the likelihood of any such loss or damage and regardless of the form of action.
(i) The Delaware Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein.
(j) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(k) The Corporate Transparency Act (31 U.S.C § 5336) and its implementing regulations (collectively, the “CTA”), may require the Trust to file reports with the Financial Crimes Enforcement Network (“FinCEN”) from time to time. It shall be the Trustee’s duty and not the Delaware Trustee’s duty to cause the Trust to make such filings, as applicable, and to cause the Trust to comply with its obligations under the CTA, if any. The parties hereto acknowledge that the Delaware Trustee acts solely as a directed trustee at the direction of the Trustee hereunder and that the Trustee is and shall deemed to be the parties with the power and authority to exercise substantial control over the Trust.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Delaware Statutory Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by , or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by , or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall , or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Statutory Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Sections 3.9(b)-(h) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Wilmington Trust Company are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Wilmington Trust Company in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Wilmington Trust Company in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Delaware Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee Sponsor, any Service Provider (other than the Delaware Trustee) or the Sponsor any other Person that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act DSTA and for taking such actions as are required to be taken by a Delaware trustee under the ActDSTA. The duties (including fiduciary Subject to the foregoing, the duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the ActDSTA, and there (iii) such other actions, pursuant to direction, as may be agreed upon between the Sponsor and the Delaware Trustee from time to time, provided that the Delaware Trustee shall have no obligation to perform any such additional actions, shall not be liable for the decision not to perform any such additional actions and reserves the right to charge additional fees for any such additional actions. Other than the foregoing, the Delaware Trustee shall have no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeSponsor; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.19. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to any court of competent jurisdiction for the appointment of a successor Delaware Trustee at the expense of the Trust.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the DSTA. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years appointed to serve as the trustee of age and a resident of the Trust in the State of Delaware or (ii) for the sole purpose of satisfying the requirement of Section 3807 of the Delaware Act that the Trust have at least one trustee with a legal entity that has its principal place of business in Delaware. It is understood and agreed by the State of Delaware, otherwise meets the requirements of applicable Delaware law Parties hereto and shall act through one or more persons authorized to bind such entity. If at any time each Beneficial Owner that the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any none of the duties and responsibilities, or liabilities of the Administrative any other Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 or any administrator or manager of the Act and for taking such actions as are required to be taken by a Delaware trustee under the ActTrust or any other person or entity. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (ia) accepting legal process served on the Trust in the State of Delaware and (iib) executing the execution of any certificates required to be filed with the Delaware Secretary of State Office that the Delaware Trustee is required to execute under Section 3811 of the Delaware Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied. 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 any Beneficial Owner, it is hereby understood and agreed by the other Parties hereto and all Beneficial Owners that such duties and liabilities are replaced by the duties and liabilities of the Delaware TrusteeTrustee expressly set forth in this Agreement. The Delaware Trustee shall have no duty or liability with respect to the administration of the Trust, the investment of the Trust Property or the payment of dividends or other distributions of income or principal to the Beneficial Owners.
(b) The Delaware Trustee shall not be liable for the acts or omissions of the Regular Trustee or any administrator or manager of the Trust or any other person or entity, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Regular Trustee or any administrator or manager of the Trust or the Trust or of any other person or entity under this Agreement or any related document. The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct. In particular, but not by way of limitation:
(i) The Delaware Trustee shall not be personally liable for any error of judgment made by a responsible officer of the Delaware Trustee in good faith;
(ii) No provision of this 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 hereunder;
(iii) Under no circumstance 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 Trust Agreement or for the due execution hereof by the other Parties;
(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 believed by it to be genuine and believed by it to be signed by the proper party or parties. The Delaware Trustee may accept a certified copy of a resolution of any governing body of any person as conclusive evidence that such resolution has been duly adopted by such person 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, signed by any officer of the party delivering the certificate, 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 its duties 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 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; and
(vii) In accepting and performing its duties hereunder the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee or the Trust by reason of the transactions contemplated by this Trust Agreement shall look only to the Trust Property for payment or satisfaction thereof.
(c) The Delaware Trustee shall serve until such time be paid compensation by the Trust as set forth in a separate fee agreement. In addition, the Sponsor removes Trust shall reimburse the Delaware Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with any of the terms provisions of this Section 5.19. Agreement (including, without limitation, the reasonable compensation and the expenses and disbursements of its counsel and agents).
(d) The Trust shall be liable for, and hereby agrees to indemnify, defend and hold harmless the Delaware Trustee may resign and any of the shareholders, officers, directors, employees and agents of the Delaware Trustee (the "Indemnified Persons") from and against, any and all losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel), taxes and penalties of any kind and nature whatsoever (collectively, "Expenses"), to the extent that such Expenses arise out of or are imposed upon or asserted at any time upon the giving of at least sixty (60) days’ advance written notice against such Indemnified Persons with respect to the Administrative Trusteeperformance of this Agreement, the creation, operation or termination of the Trust or the transactions contemplated hereby; provided, however, that such resignation the Trust shall not become effective unless and until be required to indemnify any Indemnified Person for any Expenses that are held by a successor court of competent jurisdiction in a final, nonappealable proceeding to be the result of the willful misconduct or bad faith of such Indemnified Person. As security for any amounts owing to the Delaware Trustee hereunder, the Delaware Trustee shall have been appointed a lien against the Trust Property, which lien shall be prior to the rights of any beneficial owner of the Trust. The obligations of the Trust under this Section shall survive the termination of this Agreement and the resignation or removal of the Delaware Trustee.
(e) To the fullest extent permitted by law, Expenses to be incurred by an Indemnified Person 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 Sponsor in accordance withTrust of an undertaking by, or on behalf of, such Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified hereunder.
(f) Notwithstanding anything to the contrary herein, if any amounts shall be due and owing to the Delaware Trustee hereunder and remain unpaid for more than ninety (90) days, the Delaware Trustee shall immediately be entitled to resign by notice to any member of the Trust Supervision Committee. Such resignation shall not relieve the Trust of any liability or obligation to the Delaware Trustee.
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by BNY Mellon Trust of Delaware, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by BNY Mellon Trust of Delaware, or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall BNY Mellon Trust of Delaware, or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Samples: Trust Agreement (Dominion Resources Capital Trust Iv)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Directors shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Directors set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any trustee or any Director. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Directors or any other person pursuant to the provisions of this Trust Agreement unless the Directors or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Directors and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Directors. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Directors remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Directors in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeDirectors; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Directors in accordance with Section 5.10(d) below; provided further that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Directors. If the Directors do not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Directors shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Directors, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT V in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Directors or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Settlement Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Business Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Business Trust Statute and (iii) monitoring the Trust's compliance with the Delaware Secretary of State that Business Trust Statute and advising the Administrator when action is necessary to comply with the Business Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, The Bank of New York (Delaware) 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article 8.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee's resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance days written notice to the Administrative TrusteeAdministrator, the Depositor and the Insurer; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PI Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PI Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance withwith Section 4.11(d) below. If the Trustee does not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PI Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PI Trust Agreement.
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be Bankers Trust (iDelaware) has been appointed as trustee solely for the purpose of complying with the requirement of the DBTA that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (ia) accepting legal process served on the Trust in the State of Delaware and (iib) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed with form and maintain the Delaware Secretary existence of State that the Trust under the DBTA. Except for the purpose of the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee and shall have no management responsibilities or owe any fiduciary duties to the Trust or the Certificates.
(b) By its execution hereof, the Delaware Trustee accepts the Trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of the Delaware TrusteeTrust property or the payment of interest or principal on the Certificates.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Trustee, nor shall the Delaware Trustee be liable for supervising or monitoring the performance and the duties and obligations of the Trustee or the Trust under this Agreement or any related document. The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct, bad faith or gross negligence. In particular, but not by way of limitation:
(i) the Delaware Trustee resigns and a successor shall not be personally liable for any error of judgment made in good faith;
(ii) no provision of this 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 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 appointed 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 Agreement 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 Sponsor 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, 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;
(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 with due care and (b) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and with due care 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 terms advice or opinion of any such counsel, accountants or other skilled persons; and
(vii) 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 Section 5.19Agreement shall look only to the Trust Fund for payment or satisfaction thereof.
(d) The Delaware Trustee may consult with counsel (who may be counsel for the Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee; provided, that (i) the Delaware Trustee shall have notified the Seller and the Depositor of the name of counsel and the extent of its representation, and (ii) no such fees shall be payable to the extent that they are incurred as a result of the Delaware Trustee's gross negligence, bad faith or willful misconduct.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee's resignation, or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance days written notice to the Administrative Seller and the Depositor; provided, however, said resignation shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Depositor by providing thirty (30) days written notice to the Delaware Trustee; provided, that however, such resignation removal shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Depositor shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this section shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee or any officer, affiliate, director, employee, or agent of the Delaware Trustee (each, an "Indemnified Person") shall be entitled to indemnification from the Trust Fund, to the fullest extent permitted by law, from and against any and all losses, claims, taxes, damages, reasonable expenses, and liabilities (including liabilities under state or federal securities laws) of any kind and nature whatsoever (collectively, "Expenses"), to the extent that such Expenses arise out of or are imposed upon or asserted against such Indemnified Persons with respect to the creation, operation or termination of the Trust, the execution, delivery or performance of this Agreement or the transactions contemplated hereby; provided, however, that the Trust shall not be required to indemnify any Indemnified Person for any Expenses which are a result of the willful misconduct, bad faith or gross negligence of such Indemnified Person. The obligations of the Trust to indemnify the Indemnified Persons as provided herein shall survive the termination of this Agreement.
(g) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder. The Delaware Trustee shall be entitled to all of the benefits and protections provided to the Trustee under this Agreement including all rights to indemnification. The Trustee shall compensate the Delaware Trustee for its services hereunder pursuant to separate agreement between such parties.
Appears in 1 contract
Samples: Trust Agreement (Thornburg Mortgage Sec Tr 2002-1 MRT Ln Ps THR CRT Sr 2002-1)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirement of the DBTA that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (ia) accepting legal process served on the Trust in the State of Delaware and (iib) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed with form and maintain the Delaware Secretary existence of State that the Trust under the DBTA. Except for the purpose of the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee and shall have no management responsibilities or owe any fiduciary duties to the Trust or the Certificates.
(b) By its execution hereof, the Delaware Trustee accepts the Trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of the Delaware TrusteeTrust property or the payment of interest or principal on the Certificates.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Trustee, nor shall the Delaware Trustee be liable for supervising or monitoring the performance and the duties and obligations of the Trustee or the Trust under this Agreement or any related document, except as expressly required by Section 8.17(a). The Delaware Trustee shall not be personally liable under any circumstances, except for its own willful misconduct, bad faith or gross negligence. In particular, but not by way of limitation:
(i) the Delaware Trustee resigns and a successor shall not be personally liable for any error of judgment made in good faith;
(ii) no provision of this 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 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 appointed 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 Agreement 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 Sponsor in accordance with the terms of this Section 5.19proper party or parties. The Delaware Trustee may resign at accept a certified copy of a resolution of the board of directors or other governing body of any time upon corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the giving same is in full force and effect. As to any 105 fact or matter the manner of at least sixty (60) days’ advance written notice ascertainment of which is not specifically prescribed herein, the Delaware 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 Administrative Trustee; providedDelaware 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, that such resignation shall not become effective unless the Delaware Trustee (a) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and until a successor 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 appointed selected by the Sponsor Delaware Trustee in good faith and with due care and (b) may consult with counsel, accountants and other skilled persons to be selected by it in good faith and with due care and employed by it, and it shall not be liable for anything done, suffered or omitted in good faith by it in accordance withwith the advice or opinion of any such counsel, accountants or other skilled persons; and
(vii) except as expressly provided in this Section 8.17(c), in accepting and performing the trust 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 Agreement shall look only to the Trust's property for payment or satisfaction thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Acc Inc Mort Loan Pas THR Certs Ser 01 2)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) has been appointed solely for the purpose of complying with the requirements of the Statutory Trust Statute that the Trust have one trustee, which, in the case of a natural person who person, is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware, or (ii) a legal entity that which in all other cases, has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations responsibilities of the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required the execution and delivery of all documents, and the maintenance of all records, necessary to be filed form and maintain the existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust's compliance with the Delaware Secretary of State that Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for the purpose set forth in the foregoing sentence, the Delaware Trustee is shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders.
(b) By its execution hereof, the Delaware Trustee accepts the trust created herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to execute under Section 3811 the administration of the ActTrust, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, the investment of any of the Delaware TrusteeTrust Property or the payment of dividends or other distributions of income or principal with respect to the Trust.
(c) The Delaware Trustee shall serve until such time as not be liable for the Sponsor removes acts or omissions of the Owner Trustee or the Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Delaware Trustee resigns and shall not be liable for any error of judgment made in good faith by a successor responsible officer of the Delaware Trustee unless it is appointed proved that the Delaware Trustee was negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to believe that repayment 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 responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Sponsor Depositor, the Owner Trustee, the Servicer or the Certificate Registrar;
(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 believed by it to be genuine and 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 method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, 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 conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the terms written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and
(vii) except as expressly provided in this Section 5.1910.6, in accepting and performing the trust hereby created, The Bank of New York (Delaware) 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 Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
(d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article 8.
(e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee's resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time upon the by giving of at least sixty thirty (6030) days’ advance days written notice to the Administrative TrusteeAdministrator, the Depositor and the Insurer; provided, however, that such resignation shall not become be effective unless and until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days written notice to the Delaware Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed by and shall have accepted such appointment within forty-five (45) days after the Sponsor giving of such notice of resignation or removal, the Delaware Trustee may petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance withwith this Agreement and, following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee.
(f) The Delaware Trustee shall not be obligated to give any bond or other security for the performance of any of its duties hereunder.
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth hereinherein (including in the event of a vacancy of the Trustee). The Delaware Trustee shall be one of the Trustees trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities liabilities, and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (iii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.195.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) 60 days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance withwith Section 5.11(d) below. If the Trustee does not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement.
Appears in 1 contract
Samples: Asbestos Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank USA, National Association in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PI Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PI Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) 60 days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d)
Appears in 1 contract
Samples: Asbestos Personal Injury Trust Agreement (Owens Corning/Fibreboard Asbestos Personal Injury Trust)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Directors shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Directors set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any trustee or any Director. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Directors or any other person pursuant to the provisions of this Trust Agreement unless the Directors or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Directors and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Directors. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Directors remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Directors in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeDirectors; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Directors in accordance with Section 5.10(d) below; provided, further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Directors. If the Directors do not act within such sixty (60) -day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Directors shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Directors, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT IX in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the Parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for, nor have any duty to monitor, the performance or any action of the Trust, the Directors or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused directly or indirectly by, circumstances beyond its control, including, without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Settlement Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Delaware Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee Sponsor, any Service Provider (other than the Delaware Trustee) or the Sponsor any other Person that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary Subject to the foregoing, the duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and Delaware, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there (iii) such other actions, pursuant to direction, as may be agreed upon between the Sponsor and the Delaware Trustee from time to time, provided that the Delaware Trustee shall have no obligation to perform any such additional actions, shall not be liable for the decision not to perform any such additional actions and reserves the right to charge additional fees for any such additional actions. Other than the foregoing, the Delaware Trustee shall have no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ ' advance written notice to the Administrative TrusteeSponsor; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.19. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to any court of competent jurisdiction for the appointment of a successor Delaware Trustee at the expense of the Trust.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
Appears in 1 contract
Samples: Trust Agreement (Wilshire wShares Enhanced Gold Trust)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Directors shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Directors set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any trustee or any Director. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Directors or any other person pursuant to the provisions of this Trust Agreement unless the Directors or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Directors and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Directors. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Directors remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Directors in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeDirectors; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Directors in accordance with Section 5.10(d) below; provided further that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Directors. If the Directors do not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Directors shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Directors, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT IV in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Directors or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Settlement Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.19. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegates and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.19(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 1 contract
Samples: Trust Agreement (iShares GSCI Commodity-Indexed Investing Pool LLC)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PI Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PI Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PI Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PI Trust Agreement.
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee to serve in accordance with the requirements of the Act. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, Delaware in accordance with Section 3807 of the Act or otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Asbestos Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Asbestos Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act (acting solely at the written direction of the Trustee) and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Asbestos Trust, the other parties hereto or any beneficiary of the Asbestos Trust, 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 Trust Agreement.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance withwith Section 4.11(d) below. If the Trustee does not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee and any undisputed fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement.
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Sections 3.9(b)-(h) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Wilmington Trust Company are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Wilmington Trust Company in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Wilmington Trust Company in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.10(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one a trustee of the Trustees of the PSAN PI/WD Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities liabilities, and obligations of the Delaware Trustee shall be limited to to
(i) accepting legal process served on the PSAN PI/WD Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the PSAN PI/WD Trust or the Beneficial Owners, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.194.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance withwith Section 4.10(d) below. If the Trustee does not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ]Wilmington Trust Company.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.19. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Agreement. Any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto except as may be required by law.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees, delegates and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Agreement, (ii) acts performed or omitted pursuant to the provisions of this Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Administrative Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.19(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 1 contract
Samples: Trust Agreement (iShares S&P GSCI Commodity-Indexed Investing Pool LLC)
Delaware Trustee. (a) There shall at all times be a Delaware Trustee to serve in accordance with the requirements of the Act. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of DelawareDelaware in accordance with section 3807 of the Act, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Talc Trust for the sole and limited purpose of fulfilling the requirements of Section section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to to
(i) accepting legal process served on the Talc Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section section 3811 of the Act, Act (acting solely at the written direction of the Trustee) and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Talc Trust, the other Parties hereto or any beneficiary of the Talc Trust, 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 Trust Agreement.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns resigns, and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any undisputed fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement.
(e) The Delaware Trustee shall neither be required nor permitted to attend meetings relating to the Talc Trust.
(f) The Delaware Trustee shall be paid such compensation as agreed to pursuant to a separate fee agreement.
(g) The Talc Trust will promptly reimburse the Delaware Trustee for all reasonable out-of-pocket costs and expenses incurred by the Delaware Trustee in connection with the performance of their duties hereunder.
(h) The Delaware Trustee shall be permitted to retain counsel only in such circumstances as required in the exercise of its obligations hereunder, and compliance with the advice of such counsel shall be full and complete authorization and protection for actions taken or not taken by the Delaware Trustee in good faith in compliance with such advice.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at Notwithstanding any time the Delaware Trustee shall cease to be eligible in accordance with the provisions other provision of this Trust Agreement other than Section 5.196.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Chase Manhattan Bank Delaware are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank Delaware in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Chase Manhattan Bank Delaware in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.20, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.20. The initial Delaware Trustee shall be [ [●].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 of the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.195.20. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance withwith Section 5.20. If the Sponsor does not act within such sixty (60) day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Sponsor shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Sponsor and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee (i) shall file an amendment to the Certificate of Trust reflecting the change of Delaware Trustee and (ii) shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement.
(e) The Sponsor shall indemnify the Delaware Trustee, its directors, employees and agents (the “Delaware Trustee Indemnified Persons”) against, and hold each of them harmless from, any Indemnified Amounts that are incurred by any of them and that arise out of or are related to (i) any offer or sale by the Trust of Baskets under this Trust Agreement, (ii) acts performed or omitted pursuant to the provisions of this Trust Agreement, as the same may be amended, modified or supplemented from time to time, (A) by a Delaware Trustee Indemnified Person or (B) by the Sponsor or the Trustee or (iii) any filings with or submissions to the SEC in connection with or with respect to the Shares (which, by way of illustration and not by way of limitation, include any registration statement and any amendments or supplements thereto filed with the SEC or any periodic reports or updates that may be filed under the Exchange Act or any failure to make any filings with or submissions to the SEC that are required to be made in connection with or with respect to the Shares), except that the Sponsor shall not have any obligations under this Section 5.20(e) to pay any Indemnified Amounts incurred as a result of and attributable to (x) the gross negligence or bad faith of, or material breach of the terms of this Trust Agreement by, the Delaware Trustee or (y) information furnished in writing by the Delaware Trustee to the Sponsor expressly for use in the registration statement, or any amendment thereto, filed with the SEC relating to the Shares that is not materially altered by the Sponsor. Any such indemnity shall be subject to the provisions of Section 5.11(e).
Appears in 1 contract
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.11(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Delaware Trustee shall be [ ]have no liability for the acts or omissions of any Delaware Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one a trustee of the Trustees of the PG&E Fire Victim Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities liabilities, and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PG&E Fire Victim Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee or the Beneficial Owners, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.195.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance withwith Section 5.11(d) below, provided, further that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustee. If the Trustee does not act within such 60-day period, the Delaware Trustee, at the expense of the PG&E Fire Victim Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the PG&E Fire Victim Trust in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee to serve in accordance with the requirements of the Act. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of DelawareDelaware in accordance with section 3807 of the Act, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19(c) herein. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the Hospital Trust for the sole and limited purpose of fulfilling the requirements of Section section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Hospital Trust in the State of Delaware Delaware, and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section section 3811 of the Act, Act (acting solely at the written direction of the Trustee) and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Hospital Trust, the other Parties hereto or any beneficiary of the Hospital Trust, 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 Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustee or any other person pursuant to the provisions of this Trust Agreement unless the Trustee or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustee and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustee. The Delaware Trustee may, at the expense of the Hospital Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns resigns, and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.19(d) herein. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance with Section (d) herein; provided further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustee. If the Trustee does not act within such 60-day period, the Delaware Trustee, at the expense of the Hospital Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the Hospital Trust in accordance with section 3810 of the Act.
(e) The Delaware Trustee shall neither be required nor permitted to attend meetings relating to the Hospital Trust.
(f) The Delaware Trustee shall be paid such compensation as agreed to pursuant to a separate fee agreement.
(g) The Hospital Trust will promptly reimburse the Delaware Trustee for all reasonable out-of-pocket costs and expenses incurred by the Delaware Trustee in connection with the performance of its duties hereunder.
(h) The Delaware Trustee shall be permitted to retain counsel as required in the exercise of its obligations hereunder, and compliance with the advice of such counsel shall be full and complete authorization and protection for actions taken or not taken by the Delaware Trustee in good faith in compliance with such advice.
(i) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(j) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Hospital Trust, the Trustee or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not, be regarded as making nor be required to make, any representations thereto.
(k) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Directors shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Directors set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any trustee or any Director. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Directors or any other person pursuant to the provisions of this Trust Agreement unless the Directors or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Directors and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Directors. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Directors remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Directors in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeDirectors; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Directors in accordance with Section 5.10(d) below; provided further that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Directors. If the Directors do not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Directors shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Directors, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT VII in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Directors or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Settlement Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.10(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Trustees shall have no liability for the acts or omissions of any Delaware Trustee shall be [ ]Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Tribe Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of any Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustees or any other person pursuant to the provisions of this Trust Agreement unless the Trustees or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustees and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustees. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.195.10(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance with Section 5.10(d) below; provided further that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustees. If the Trustees do not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of TAFT II in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or non-performance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Trustees or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making, nor be required to make, any representations thereto.
(h) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.11(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PD Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PD Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PD Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PD Trust Agreement.
Appears in 1 contract
Samples: Settlement Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee to serve in accordance with the requirements of the Act. The Delaware Trustee shall either be be: (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware Delaware; or (ii) a legal entity that has its principal place of business in the State of DelawareDelaware in accordance with section 3807 of the Act, otherwise meets the requirements of applicable Delaware law law, and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.14, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.14(c) herein. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the NAS Monitoring Trust for the sole and limited purpose of fulfilling the requirements of Section section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to to: (i) accepting legal process served on the NAS Monitoring Trust in the State of Delaware Delaware; and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section section 3811 of the Act, Act (acting solely at the written direction of the Trustee) and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the NAS Monitoring Trust, the other Parties hereto or any beneficiary of the NAS Monitoring Trust, 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 Trust Agreement. The Delaware Trustee shall have no liability for acts or omissions of the Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustee or any other person pursuant to the provisions of this Trust Agreement unless the Trustee or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustee and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustee. The Delaware Trustee may, at the expense of the NAS Monitoring Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns resigns, and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.194.14(d) herein; provided further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than xxxxxx (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustee. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ days advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance with Section 4.14(d) herein. If the Trustee does not act within such 60-day period, the Delaware Trustee, at the expense of the NAS Monitoring Trust, may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee and any undisputed fees and expenses due to the outgoing Delaware Trustee is paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the NAS Monitoring Trust in accordance with section 3810 of the Act.
(e) The Delaware Trustee shall neither be required nor permitted to attend meetings relating to the NAS Monitoring Trust.
(f) The Delaware Trustee shall be paid such compensation as agreed to pursuant to a separate fee agreement.
(g) The NAS Monitoring Trust will promptly reimburse the Delaware Trustee for all reasonable out-of-pocket costs and expenses incurred by the Delaware Trustee in connection with the performance of its duties hereunder.
(h) The Delaware Trustee shall be permitted to retain counsel as required in the exercise of its obligations hereunder, and compliance with the advice of such counsel shall be full and complete authorization and protection for actions taken or not taken by the Delaware Trustee in good faith in compliance with such advice.
(i) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(j) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the NAS Monitoring Trust, the Trustee or any other person, or any of their directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities as to the validity, sufficiency, value, genuineness, ownership or transferability of any NAS Monitoring Trust Asset, written instructions, or any other documents in connection therewith, and will not be regarded as making nor be required to make, any representations thereto.
(k) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any change in law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; military disturbances; sabotage; loss or malfunctions of utilities, acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(l) Notwithstanding anything to the contrary in this Agreement (other than Section 4.6 hereof), the NAS Monitoring Trust shall not be required to advance or reimburse any expense of the Delaware Trustee in excess of $500 to the extent that the Trustee has not approved such expense in writing; provided, however, such approval shall not be required with respect to the Notwithstanding anything to the contrary in this Agreement (other than Section 4.6 hereof), the NAS Monitoring Trust shall not be required to advance or reimburse any expense of the Delaware Trustee in excess of $500 to the extent that the Trustee has not approved such expense in writing; provided, however, such approval shall not be required with respect to the legal fees of the Delaware Trustee’s counsel in connection with the review and negotiation of this Agreement and any expense of filing any certificate required to be filed pursuant to the Act.expense of filing any certificate required to be filed pursuant to the Act.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law to be eligible to serve as the Delaware Trustee and shall act through one or more persons authorized to bind such entity. The initial Delaware Trustee shall be Wilmington Trust, National Association. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.195.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.195.9(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights, duties (including fiduciary duties) and obligations as expressly provided by reference to the Delaware Trustee hereunder. The initial Delaware Trustee shall be [ ]have no liability for the acts or omissions of any Delaware Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee or the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees a trustee of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, and there . There shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating to the Trust or the Beneficiaries, such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Trust Agreement. The Delaware Trustee shall have no liability for the acts or omissions of the Trustee. The Delaware Trustee undertakes to perform such duties and only such duties as are specifically and expressly set forth in this Trust Agreement. These duties shall be deemed purely ministerial in nature, and the Delaware Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. Any permissive rights of the Delaware Trustee to do things enumerated in this Trust Agreement shall not be construed as a duty and, with respect to any such permissive rights, the Delaware Trustee shall not be answerable for other than its willful misconduct, bad faith, gross negligence or fraud. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of the Trustee or any other person pursuant to the provisions of this Trust Agreement unless the Trustee or such other person shall have offered to the Delaware Trustee security or indemnity (satisfactory to the Delaware Trustee in its discretion) against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction. The Delaware Trustee shall be entitled to request and receive written instructions from the Trustee and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Delaware Trustee in accordance with the written direction of the Trustee. The Delaware Trustee may, at the expense of the Trust, request, rely on and act in accordance with officer’s certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such officer’s certificates and opinions of counsel.
(c) The Delaware Trustee shall serve until such time as the Sponsor Trustee removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustee in accordance with the terms of this Section 5.195.9(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, provided that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustee in accordance with Section 5.9(d) below; provided further, that if any amounts due and owing to the Delaware Trustee hereunder remain unpaid for more than ninety (90) days, the Delaware Trustee shall be entitled to resign immediately by giving written notice to the Trustee. If the Trustee does not act within such sixty (60) day period, the Delaware Trustee, at the expense of the Trust, may apply to the Bankruptcy Court or any other court of competent jurisdiction for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustee shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustee, and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of his or her duties and obligations under this Trust Agreement. The successor Delaware Trustee shall make any related filings required under the Act, including filing a Certificate of Amendment to the Certificate of Trust of the Trust in accordance with Section 3810 of the Act.
(e) Notwithstanding anything herein to the contrary, any business entity into which the Delaware Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Delaware Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor of the Delaware Trustee hereunder and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(f) The Delaware Trustee shall be entitled to compensation for its services as agreed pursuant to a separate fee agreement between the Trust and the Delaware Trustee, which compensation shall be paid by the Trust. Such compensation is intended for the Delaware Trustee’s services as contemplated by this Trust Agreement. The terms of this paragraph shall survive termination of this Trust Agreement and/or the earlier resignation or removal of the Delaware Trustee.
(g) The Delaware Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document, other than this Trust Agreement, whether or not, an original or a copy of such agreement has been provided to the Delaware Trustee. The Delaware Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument or document, other than this Trust Agreement. Neither the Delaware Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Trust, the Trustee or any other person, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Delaware Trustee may assume performance by all such persons of their respective obligations. The Delaware Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person. The Delaware Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Trust Asset, written instructions, or any other documents in connection therewith, and will not, be regarded as making nor be required to make, any representations thereto.
(h) The Delaware Trustee shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been negligent in ascertaining the pertinent facts. Nothing in this Trust Agreement shall require the Delaware Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. In no event shall the Delaware Trustee be responsible or liable for special, indirect, punitive, incidental or consequential losses or damages of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Delaware Trustee has been advised of the likelihood of any such loss or damage and regardless of the form of action.
(i) The Delaware Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein.
(j) The Delaware Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Trust Agreement arising out of, or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(k) The Corporate Transparency Act (31 U.S.C § 5336) and its implementing regulations (collectively, the “CTA”), may require the Trust to file reports with the Financial Crimes Enforcement Network (“FinCEN”) from time to time. It shall be the Trustee’s duty and not the Delaware Trustee’s duty to cause the Trust to make such filings, as applicable, and to cause the Trust to comply with its obligations under the CTA, if any. The parties hereto acknowledge that the Delaware Trustee acts solely as a directed trustee at the direction of the Trustee hereunder and that the Trustee is and shall deemed to be the parties with the power and authority to exercise substantial control over the Trust.
Appears in 1 contract
Samples: Trust Agreement
Delaware Trustee. (a) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.194.11, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.194.1l(c) below. The initial For the avoidance of doubt, the Delaware Trustee shall be [ ]will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Administrative Trustee or the Sponsor that are Trustees set forth herein. The Delaware Trustee shall be one of the Trustees trustees of the PD Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PD Trust in the State of Delaware and (ii) executing the execution of any certificates required to be filed with the Delaware Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act, Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor Trustees in accordance with the terms of this Section 5.194.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative TrusteeTrustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor Trustees in accordance withwith Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d) Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PD Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PD Trust Agreement.
Appears in 1 contract
Samples: Asbestos Property Damage Settlement Trust Agreement (W R Grace & Co)
Delaware Trustee. (a) The Delaware Trustee shall either be (i) a natural person who is at least twenty-one (21) years Notwithstanding any other provision of age and a resident of ------------ ---------------- this Trust Agreement other than Section 6.2, the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. The initial Delaware Trustee shall be [ ].
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, responsibilities of the Administrative Trustee Trustees or the Sponsor that are Property Trustee described in this Trust Agreement. Except as set forth herein. The in Section 6.2, the Delaware Trustee shall be one of the Trustees of the Trust a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 3807(a) of the Act and for taking such actions as are Business Trust Act. In the event the Delaware Trustee shall at any time be required to be taken by a Delaware trustee under take any action or perform any duty hereunder with respect to the Act. The duties (including fiduciary duties)Trust, liabilities and obligations of the Delaware Trustee shall be limited entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) accepting legal process served on the any agreements or instruments executed and delivered by Bank One Delaware, Inc., or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the State exercise of Delaware the powers and authority conferred and vested in it, (ii) executing any certificates required to be filed with the Delaware Secretary of State that the Delaware Trustee is required to execute under Section 3811 each of the Actrepresentations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Bank One Delaware, Inc., or any Successor Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and there (iii) under no circumstances shall Bank One Delaware, Inc., or any Successor Delaware Trustee, in its individual capacity be no other duties (including fiduciary duties) personally liable for the payment of any indebtedness or obligationsexpenses of the Trust or be liable for the breach or failure of any obligation, express representation, warranty or impliedcovenant made or undertaken by the Trust under this Trust Agreement, at law except if such breach or in equity, failure is due to any gross negligence or willful misconduct of the Delaware Trustee.
(c) The Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms of this Section 5.19. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Sponsor in accordance with
Appears in 1 contract
Delaware Trustee. (a) The If required by the Delaware Trustee Act, one trustee (the “Delaware Trustee”) shall either be be: (i) a natural person who is at least twenty-one (21) years of age and a resident of the State of Delaware Delaware; or (ii) if not a legal natural person, an entity that which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, including Section 3807 of the Delaware law and Act.
(b) The Delaware Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 5.19, it shall resign immediately in the manner and with the effect hereinafter specified in this Section 5.19. officers.
(c) The initial Delaware Trustee shall be [ ]Wilmington Trust Company, whose offices are located at Xxxxxx Square North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration.
(bd) The Notwithstanding any other provision of this Agreement, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of any of the Administrative Trustee or Trustees described in this Agreement and the Sponsor that are set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust a trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware trustee under the Act. The duties .
(including fiduciary duties), liabilities and obligations e) No resignation or removal of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State and no appointment of Delaware and (ii) executing any certificates required to be filed with the Delaware Secretary of State that the a Successor Delaware Trustee is required pursuant to execute under Section 3811 this Agreement shall become effective until the acceptance of appointment by the Act, and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c) The Successor Delaware Trustee shall serve until such time as the Sponsor removes the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Sponsor in accordance with the terms applicable requirements of this Article.
(f) Subject to Section 5.19. The 3.3(e), the Delaware Trustee may resign at any time by giving written notice thereof to the Board of Trustees and to the ISE Holdings Board. Such resignation shall be effective upon the giving appointment of at least sixty (60) days’ advance written notice to the Administrative Trustee; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed (the “Successor Delaware Trustee”) by the Sponsor in accordance withISE Holdings Board, which appointment shall require that the Successor Delaware Trustee execute an instrument of acceptance required by this Section 3.3. If the instrument of acceptance by the Successor Delaware Trustee required by this
Appears in 1 contract
Samples: Trust Agreement
