General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows: (a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940; (b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of monies, Securities or Units pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful misfeasance, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof; (c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any Securities, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor; (d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest of the Unit Holders pursuant to the terms of this Indenture, provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders; (e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof; (f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust; (g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03; (h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor; (i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account. (j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself; (l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder; (m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and (n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
Samples: Trust Indenture and Agreement (National Equity Tr Short Term Low 5 Cover Write Opt Tr Ser 1)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, ; or for the disposition of monies, Securities or Units pursuant to this Indenture, ; or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture Indenture; or otherwise, except by reason of its own wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor Depositor, or for the form, character, genuineness, sufficiency, value or validity of any Securities, or for or in respect of the validity or sufficiency of the Certificates or the due execution thereof by the Depositor, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action actions shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest interests of the Unit Holders pursuant to the terms of this Indenture, providedPROVIDED, howeverHOWEVER, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; providedPROVIDED, howeverHOWEVER, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct misconduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants Accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at the times specified in Section 3.05 at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.or
Appears in 1 contract
Samples: Trust Indenture and Agreement (Morgan Stanley Dean Wit Sel Equity Tr 5 Industrial 2000-2)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee Trustee, as otherwise set forthforth herein, the liabilities of the Trustee are further defined as follows:
(a) all monies moneys deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust Fund or the Reserve Account until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds or Units Certificates pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this the Indenture or otherwise, except by reason of its own wilful misfeasancewillful misconduct, bad faith or negligence gross negligence; provided, however, that the Trustee shall not in any event be liable or responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderEvaluator. The parties hereto Trustee may construe any of the provisions of in this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereofhereof by the Trustee in good faith shall be binding upon the parties hereto;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or the Evaluator, or for the form, character, genuineness, sufficiency, value or validity of any SecuritiesBonds or for or in respect of the validity or sufficiency of the Certificates or of the due execution thereof by the Depositor, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder Certificateholder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the DepositorDepositor or the Evaluator;
(d) the Trustee shall not be under no any obligation to appear in, prosecute or defend any action action, which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to of the Trustee from such action actions shall be deductible from and a charge against the Income Interest and Principal Accounts of the TrustAccounts. Subject to the foregoing, the The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Certificate- holders pursuant to the terms of this Indenture, ; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income Interest and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust Fund prior to the interests of the Unit HoldersCertificateholders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports report of such accountants shall be furnished by the Trustee to Unit Holders the Certificateholders upon request. The Trustee shall be fully protected in respect of any action under this Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust Trustee reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 6.4 hereof;
(f) if upon the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform occurrence of any of the duties which by the terms of this Indenture are required by it to be undertaken events stated in Section 8.1(a) or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such caseSection 8.3 hereof, the Trustee may: :
(1) appoint a successor depositor meeting the qualifications set forth (having a net worth, determined in Section 8.03 accordance with generally accepted accounting principles, of at least $1,000,000) who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated semi-annually, at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust Interest Account, or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or any successor provision, or
(2) if no depositor or successor depositor has been appointed, terminate this Agreement and the trust created hereby, and liquidate the Trust Fund in the manner provided in Section 9.3;
(g) the Trustee shall notify all Certificateholders if the value of the Trust Fund as shown by any evaluation by the Trustee pursuant to Section 5.1 hereof shall be less than $2,000,000 or less than 20% of the value of the Trust Fund as of the Date of Deposit and, after such notice is given, this Indenture and the trust created hereby may be terminated and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurredFund liquidated, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.039.3, (i) by the consent of 66 2/3% of the Units at the time outstanding under this Indenture or (ii) by the Trustee, in its discretion, provided, however, upon written notification to the Certificateholders of their opportunity to object to such termination and to the Depositor, at least 33 1/3% of the Units at the time outstanding under this Indenture do not instruct the Trustee not to terminate the trust and liquidate the Trust Fund;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities Bonds or upon the dividends interest thereon or upon it as Trustee hereunder or upon or in respect of the Trust Fund which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel and audit fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income Interest and Principal Accounts of the TrustTrust Fund, except as otherwise provided in Section 6.1(e) and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust Fund prior to the interests of the Unit Holders. The Depositor shall, upon request by Certificateholders;
(i) the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own gross negligence, bad faith or wilful misconduct willful misconduct, shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and or believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the Trustee is authorized and empowered to execute and file on behalf of the Trust Fund any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various states in order to permit the sale of Units of the Trust Fund in such states by the Depositor; and
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Actthe Investment Company Act of 1940) for the Trust or to any affili- ated affiliated person (as so defineddefined in the Investment Company Act of 1940) or agent of the a Depositor or such underwriter shall be allowed the Trustee as an expense by the Trustee except for payment not in excess of such reasonable amounts as the Securities and Exchange Commission may prescribe as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) Trustee. Notwithstanding any provision of this Agreement to the contrary, the Trustee in its individual or any other capacity may become an owner or pledgee ofis authorized and empowered, or be an underwriter or dealer in respect of, common stock and other securities issued by subject to the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account approval of the Depositor and its counsel, to enter into a servicing arrangement or arrangements as it deems necessary or appropriate for the performance by a service organization (which may be a corporation under common ownership with the Trustee) of bookkeeping, accounting, reporting, distribution and other activities and duties allocated to it under this Agreement. The Trustee may otherwise deal with is further authorized and empowered, subject to the approval of the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect its counsel, to the security interestamend, supplement or terminate any such servicing arrangement or arrangements made pursuant to this provision.
Appears in 1 contract
Samples: Trust Indenture (Glickenhaus Special Situations Trust Series 1)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee Trustee, as otherwise set forthforth herein, the liabilities of the Trustee are further defined as follows:
(a) all monies moneys deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust Fund or the Reserve Account until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds or Units Certificates pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this the Indenture or otherwise, except by reason of its own wilful misfeasancewillful misconduct, bad faith or negligence gross negligence; provided, however, that the Trustee shall not in any event be liable or responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderEvaluator. The parties hereto Trustee may construe any of the provisions of in this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereofhereof by the Trustee in good faith shall be binding upon the parties hereto;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor Depositors or the Evaluator, or for the form, character, genuineness, sufficiency, value or validity of any SecuritiesBonds or for or in respect of the validity or sufficiency of the Certificates or of the due execution thereof by the Depositors, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder Certificateholder or the Depositor Depositors other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the DepositorDepositors or the Evaluator;
(d) the Trustee shall not be under no any obligation to appear in, prosecute or defend any action action, which in its opinion may involve it in expense or liability, unless unless, as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to of the Trustee from such action actions shall be deductible from and a charge against the Income Interest and Principal Accounts of the TrustAccounts. Subject to the foregoing, the The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Certificateholders pursuant to the terms of this Indenture, ; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income Interest and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust Fund prior to the interests of the Unit HoldersCertificateholders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the DepositorDepositors, and the reports report of such accountants shall be furnished by the Trustee to Unit Holders the Certificateholders upon request. The Trustee shall be fully protected in respect of any action under this Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust Trustee reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 6.4 hereof; provided, however, that an amount equal to any excess over $0.50 per outstanding Unit of the annual audit expense shall be paid by the Depositors so long as the Depositors maintain a secondary market;
(f) if upon the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform occurrence of any of the duties which by the terms of this Indenture are required by it to be undertaken events stated in Section 8.2(a) or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such caseSection 8.4 hereof, the Trustee may: :
(1) appoint a successor depositor meeting the qualifications set forth (having a net worth, determined in Section 8.03 accordance with generally accepted accounting principles, of at least $1,000,000) who shall act hereunder in all respects in place of the Depositor Depositors which successor shall be satisfactory to the Trustee, and which may be compensated semi-annually, at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust Interest Account, or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or any successor provision, or
(2) if no depositor or successor depositor has been appointed, terminate this Agreement and the trust created hereby, and liquidate the Trust Fund in the manner provided in Section 9.3;
(g) the Trustee shall notify all Certificateholders if the value of the Trust Fund as shown by any evaluation by the Trustee pursuant to Section 5.1 hereof shall be less than $2,000,000 or less than 20% of the value of the Trust Fund as of the Date of Deposit and, after such notice is given, this Indenture and the trust created hereby may be terminated and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurredFund liquidated, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.039.3, (i) by the consent of 66 2/3% of the Units at the time outstanding under this Indenture or (ii) by the Trustee, in its discretion, provided, however, upon written notification to the Certificateholders of their opportunity to object to such termination and to the Depositors, at least 33 1/3% of the Units at the time outstanding under this Indenture do not instruct the Trustee not to terminate the trust and liquidate the Trust Fund;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities Bonds or upon the dividends interest thereon or upon it as Trustee hereunder or upon or in respect of the Trust Fund which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel and audit fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income Interest and Principal Accounts of the TrustTrust Fund, except as otherwise provided in Section 6.1(e) and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust Fund prior to the interests of the Unit Holders. The Depositor shall, upon request by Certificateholders;
(i) the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own gross negligence, bad faith or wilful misconduct willful misconduct, shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and or believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the Trustee is authorized and empowered to execute and file on behalf of the Trust Fund any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various states in order to permit the sale of Units of the Trust Fund in such states by the Depositors; and
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the a Depositor or to any principal underwriter (as defined in such Actthe Investment Company Act of 1940) for the Trust or to any affili- ated affiliated person (as so defineddefined in the Investment Company Act of 1940) or agent of the a Depositor or such underwriter shall be allowed the Trustee as an expense by the Trustee except for payment not in excess of such reasonable amounts as the Securities and Exchange Commission may prescribe as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) Trustee. Notwithstanding any provision of this Agreement to the contrary, the Trustee in its individual is authorized and empowered, subject to the approval of the Depositors and their counsel, to enter into a servicing arrangement or any other capacity arrangements as it deems necessary or appropriate for the performance by a service organization (which may become an owner or pledgee ofbe a corporation under common ownership with the Trustee) of bookkeeping, or be an underwriter or dealer in respect ofaccounting, common stock reporting, distribution and other securities issued by activities and duties allocated to it under this Agreement. The Trustee is further authorized and empowered, subject to the same issuer (or an affiliate of such issuer) of any approval of the Securities at Depositors and their counsel, to amend, supplement or terminate any time held as part of the Trust and may deal with such common stock servicing arrangement or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect arrangements made pursuant to the security interestthis provision.
Appears in 1 contract
Samples: Trust Indenture and Agreement (Empire State Municipal Exempt Trust Guaranteed Series 134)
General Definition of Trustee’s Liabilities, Rights and Duties. The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect each Trust and the rights and interests of the Unitholders pursuant to the terms of this Indenture, PROVIDED, HOWEVER, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Interest and Principal Accounts of such Trust and the payment of such costs and expenses shall be secured by a prior lien on such Trust.; In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forthforth herein, the liabilities of the Trustee are further defined as follows:
(a) all monies All moneys deposited with or received by the Trustee hereunder related to a Trust shall be held by it without interest in trust as part of such Trust or the Reserve Account of such Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;.
(b) the The Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds, Certificates or Units Book Entry Positions pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful misfeasancenegligence, bad lack of good faith or negligence willful misconduct, provided that the Trustee shall not in any event be liable or responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderDepositor. The parties hereto Trustee may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;hereof by the Trustee in good faith shall be binding upon the parties hereto.
(c) the The Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor Depositor, or for the form, character, genuineness, sufficiency, value or validity of any Securities (except that the Trustee shall be responsible for the exercise of due care in determining the genuineness of Securities delivered to it pursuant to contracts for the purchase of such Securities) or for or in respect of the validity or sufficiency of any Certificates or of the due execution thereof by the Depositor, or for the payment by the Insurer of amounts due under or the performance by the Insurer of its obligations in accordance with the Insurance, and the Trustee shall in no event assume or incur any liability, duty duty, or obligation to any Unit Holder Unitholder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures signature by or on behalf of the Depositor;.
(d) the The Trustee shall not be under no any obligation to appear in, prosecute or defend any action action, which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to of the Trustee from such action actions shall be deductible from and a charge against the Income Interest and Principal Accounts of the Trustaffected Trust or Trusts. Subject to the foregoing, the The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest interests of the Unit Holders Unitholders pursuant to the terms of this Indenture; PROVIDED, provided, howeverHOWEVER, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income Interest and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;Unitholders.
(e) the The Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust Trustee reimbursable from the Interest and Principal Accounts of the affected Trust as set forth in Section 6.04 5.04 hereof;.
(f) if If at any time the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed performed, or if the such Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the such Depositor or of its property of the Depositor shall be appointed appointed, or any public officer shall take charge or control of the such Depositor or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the such Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction ratably from the Income Account Interest Accounts of the Trust affected Trusts or, to the extent funds are not available in such Account, from the Principal Account Accounts of the Trust affected Trusts but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the affected Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;7.02.
(g) if If (i) the value of the any Trust as shown by any Trust Evaluation evaluation by the Trustee pursuant to Section 4.01 hereof shall be less than 40% twenty per cent (20%) of the value aggregate principal amount of Securities initially deposited in such Trust, or (ii) by reason of the Securities in Depositor's redemption of Units of a Trust not theretofore sold, the net worth of the Trust determined as is reduced to less than forty per cent (40%) of the date on which the most recent deposit aggregate principal amount of Securities occurredinitially deposited therein, the Trustee may in its discretion, and shall if when so directed by the Depositor, terminate this Indenture and the trust created hereby insofar as they related to such Trust and liquidate the Trust such Trust, all in the manner provided in Section 9.03;7.02.
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in In no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends interest thereon or upon it as Trustee hereunder or upon or in respect of the any Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income Interest and Principal Accounts of the affected Trust, and the payment of such amounts so paid by the Trustee shall be secured by a prior lien on such Trust.
(i) No payment to a Depositor or to any principal underwriter (as defined in the Investment Company Act of 1940) for the Trust prior or to any affiliated person (as so defined) or agent of a Depositor or such underwriter shall be allowed the interests Trustee as a expense except for payment of such reasonable amounts as the Unit Holders. The Depositor shall, upon request Securities and Exchange Commission may prescribe as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee The Trustee except by reason of its own negligence, bad faith negligence or wilful willful misconduct shall not be liable for any action taken, omitted taken or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;.
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the The Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and stocks, bonds or other securities obligations issued by the same issuer (or an affiliate of such issuer) or any obligor of any of the Securities Bonds at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same or with the issuer (or an affiliate of the issuer) with the same rights and powers as if it were not the Trustee hereunder;.
(ml) the The Trust may include a letter or letters of credit for securing the purchase of Securities or Contract Securities Bonds pursuant to contracts deposited by the Depositor which are issued by the Trustee in its individual capacity for the account of the Depositor Depositor, and the Trustee may otherwise deal with the Depositor and the Trust Trustee with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
General Definition of Trustee’s Liabilities, Rights and Duties. The Trustee shall be obligated to perform only such duties as are specifically set forth in this Indenture. The expenses and costs of allocations, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Capital Accounts of the Trust, and the payment of such costs and expenses shall be secured by a lien on the Trust in status prior to the interest of Unitholders. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies All moneys deposited with or received by the Trustee hereunder related to the Trust shall be held by it without in an interest bearing account in trust trust, as part of the Trust Income Account, Capital Account or Reserve Account until required to be disbursed in accordance with the provisions of this Indenture Indenture, and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust. All Securities deposited with the Trustee shall be held in trust within by the meaning Trustee or in the custody of a designated agent and sold, transferred or distributed only pursuant to the Investment Company Act terms and conditions of 1940;this Indenture.
(b) the The Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, order list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document document, whether or not of the same kind kind, prima facie properly executed, or for the disposition of moniesmoneys, Securities Securities, Units, or Units Unit Certificates pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful gross negligence or willful misfeasance, bad faith provided that the Trustee shall not in any event be liable or negligence in responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderDepositor-Sponsor. The parties hereto Trustee may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof, and any construction of any such provision hereof which construction by the Trustee in good faith shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;.
(c) the The Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency sufficiently of this Indenture or for the due execution hereof by the Depositor Depositor-Sponsor, or for the form, character, genuineness, sufficiency, value or validity of any Securitiesof the Securities or for or in respect of the validity or sufficiency of the Units or of the Unit Certificates (except for the due execution thereof by the Trustee) or for the due execution thereof by the Depositor-Sponsor, and the Trustee shall in no event assume or incur any liability, duty duty, or obligation to any Unit Holder Unitholder or the Depositor Depositor-Sponsor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures signature by or on behalf of the Depositor;-Sponsor.
(d) the The Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by (1) more than 50% of the Trustee, it Unitholders direct the Trustee to so intervene and (2) the Trustee shall be furnished with reasonable security and indemnity against such expense or liability, and any . Any pecuniary cost to of the Trustee from such action actions shall be deductible from and a charge against the Income and Principal Capital Accounts of the Trustaffected Trust or Trusts. Subject to the foregoingThe Trustee may, the Trustee shall in its discretion discretion, undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Unitholders pursuant to the terms of this Indenture, ; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, Capital Accounts and the payment of such costs and expenses amounts shall be secured by a prior lien on the Trust prior to the interests of the Unit Holders;such Trust.
(e) the The Trustee may employ agents, attorneys, accountants and auditors or other professionals (collectively "Agents") and shall not be answerable for the negligence, default or misconduct of any such agents, attorneys, accountants or auditors Agents if such agents, attorneys, accountants or auditors they shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of have no liability for any action act or omission under this Indenture taken, taken or suffered, suffered in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall counsel which may be audited not less frequently than annually by independent certified public accountants designated from time counsel to time by the Depositor, and -Sponsor acceptable to the reports of such accountants shall be furnished by the Trustee to Unit Holders upon requestTrustee. The fees and expenses charged by such agents, attorneys, accountants or auditors Agents shall constitute an expense of the Trust reimbursable from the Interest Income and Principal Capital Accounts of the affected Trust as set forth in Section 6.04 hereof;7.4 hereof and the payment of such amounts shall be secured by a prior lien on such Trust.
(f) if If at any time the Depositor shall resign pursuant to Section 8.04 hereof or Depositor-Sponsor shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed performed, or if the Depositor such Depositor-Sponsor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the such Depositor-Sponsor or of its property of the Depositor shall be appointed appointed, or any public officer shall take charge or control of the Depositor such Depositor-Sponsor or of its property or affairs for the purpose of rehabilitation, conservation or of liquidation, then in any such case, the Trustee mayshall at the direction of more than 50% of the Unitholders: (1) appoint a successor depositor meeting Depositor-Sponsor, which may be the qualifications set forth in Section 8.03 Trustee or an affiliate, (provided, however, that the Trustee shall have no obligation to accept such appointment) who shall act hereunder in all respects in place of the Depositor such Depositor-Sponsor, which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction ratably from the Income Account of the Trust affected trusts or, to the extent funds are not available in such Account, from the Principal Capital Account of the Trust but no affected Trusts, with written notice of such deduction shall be made exceeding such reasonable amount as successor to the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of Depositor-Sponsor given to all Unitholders by the Investment Company Act of 1940Trustee, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust Fund in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;10.2.
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in In no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends income or interest thereon or upon it as Trustee hereunder or upon or in respect of the any Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Capital Accounts of the affected Trust, and the payment of such amounts so paid by the Trustee shall be secured by a prior lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal AccountTrust.
(jh) Except as provided for specifically herein, no payment to a Depositor-Sponsor, its Affiliates or agents for any Trust shall be characterized and claimed as an expense by the trustee Trustee against the Trust except for payment of such reasonable amounts as determined by the Depositor-Sponsor which constitute compensation for performing bookkeeping and other administrative services.
(i) The Trustee, except by reason of its own negligencegross negligence or willful misconduct, bad faith or wilful misconduct shall not be liable for any action taken, omitted act or omission taken or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or discretion, rights or powers conferred upon it by this Indenture;.
(kj) so long The Trustee is authorized to appoint as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed co-trustee a trust company affiliated with the Trustee as an expense except for payment not in excess to perform the functions of such reasonable amounts as compensation for performing bookkeeping custodian and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock receiving and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interestpaying agent.
Appears in 1 contract
Samples: Trust Agreement (Gen Net Realty Unit Investment Trust Corporate Govt Series)
General Definition of Trustee’s Liabilities, Rights and Duties. The Trustees shall be obligated to perform only such duties as are specifically set forth in this Agreement. The expenses and costs of allocations, undertakings or proceedings shall be reimbursable to the Trustees from the Income and Capital Accounts of the Trust, and the payment of such costs and expenses shall be secured by a lien on the Trust in status prior to the interest of Unitholders. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee Trustees as otherwise set forth, the liabilities of the Trustee Trustees are further defined as follows:
(a) all monies All moneys deposited with or received by the Trustee Trustees hereunder related to the Trust Fund shall be held by it without in an interest bearing account in trust trust, as part of the Trust Income Account, Capital Account or Reserve Account until required to be disbursed in accordance with the provisions of this Indenture Agreement, and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies Fund in such other manner as shall constitute the segregation and holding thereof in trust. All Securities deposited with the Fund shall be held in trust within by the meaning Trustees or in the custody of a designated Trust Custodian and sold, transferred or distributed only pursuant to the Investment Company Act terms and conditions of 1940;this Agreement.
(b) the Trustee The Trustees shall be under no liability for any action taken in good faith on any appraisal, paper, order, order list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document document, whether or not of the same kind kind, prima facie properly executed, or for the disposition of moniesmoneys, Securities Securities, Units, or Units Unit Certificates pursuant to this IndentureAgreement, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture Agreement or otherwise, except by reason of its own wilful gross negligence or willful misfeasance, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto Trustees acting as the Board may construe any of the provisions of this IndentureAgreement, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof, and any construction of any such provision hereof which construction by the Board in good faith shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;.
(c) the Trustee The Trustees shall not be responsible for or in respect of the recitals herein, the validity or sufficiency sufficiently of this Indenture Agreement or for the due execution hereof by the Depositor Sponsor, or for the form, character, genuineness, sufficiency, value or validity of any Securities, of the Securities or for or in respect of the validity or sufficiency of the Units or of the Unit Certificates (except for the due execution thereof by the Trustees) and the Trustee Trustees shall in no event assume or incur any liability, duty duty, or obligation to any Unit Holder or the Depositor Unitholder other than as expressly provided for herein. The Trustee Trustees shall not be responsible for or in respect of the validity of any signatures signature by or on behalf of the Depositor;Sponsor.
(d) the Trustee The Fund shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by (1) more than 50% of the Trustee, it Unitholders direct the Fund to so intervene and (2) the Trustees shall be furnished with reasonable security and indemnity against such expense or liability, and any . Any pecuniary cost to of the Trustee Fund from such action actions shall be deductible from and a charge against the Income and Principal Accounts of the TrustCapital Accounts. Subject to the foregoingThe Board may, the Trustee shall in its discretion discretion, undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Unitholders pursuant to the terms of this Indenture, Agreement; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee Fund from the Income and Principal Accounts, Capital Accounts and the payment of such costs and expenses amounts shall be secured by a prior lien on the Trust prior to the interests of the Unit Holders;Fund.
(e) the Trustee The Board may employ agents, attorneys, accountants and auditors or other professionals (collectively "Agents") and shall not be answerable for the negligence, default or misconduct of any such agents, attorneys, accountants or auditors Agents if such agents, attorneys, accountants or auditors they shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable . The Trustees shall have no liability for any default act or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action omission under this Indenture taken, Agreement taken or suffered, suffered in good faith by the TrusteeTrustees, in accordance with the opinion of its counsel. The accounts of counsel which may be counsel to the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time Sponsor acceptable to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon requestTrustees. The fees and expenses charged by such agents, attorneys, accountants or auditors Agents shall constitute an expense of the Trust Fund reimbursable from the Interest Income and Principal Capital Accounts as set forth in Section 6.04 hereof;7.4 hereof and the payment of such amounts shall be secured by a prior lien on such Trust.
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or If at any time a Trustee shall fail to undertake or perform any of the duties which by the terms of this Indenture Agreement are required by it to be undertaken or performed performed, or if the Depositor such Trustees shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the such Trustee or of his property of the Depositor shall be appointed appointed, or any public officer shall take charge or control of the Depositor such Trustee or its property or of his affairs for the purpose of rehabilitation, conservation or of liquidation, then in any such case, the Trustee may: Board shall at the direction of at least 66 2/3% of the Unitholders:
(1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 Trustee who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the such replaced Trustee, and which may be compensated at rates deemed by the Trustee Board to be reasonable under the circumstances, by deduction ratably from the Income Account of the Trust affected trusts or, to the extent funds are not available in such Account, from the Principal Capital Account of the Trust but no affected Trusts, with written notice of such deduction shall be made exceeding such reasonable amount as successor to the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of replaced Trustee given to all Unitholders by the Investment Company Act of 1940Board, or (2) terminate this Indenture Agreement and the trust created hereby and liquidate the Trust Fund in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;8.2.
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in In no event shall the a Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends income or interest thereon or upon it him as Trustee Trustees hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee Fund may sustain or incur with respect to such taxes or charges, the Trustee Fund shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the TrustCapital Accounts, and the payment of such amounts so to be paid by the Trustee shall be secured by a prior lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal AccountFund.
(jh) Except as provided for specifically herein, no claim for payment to a Sponsor or its Affiliates, whether direct or indirect shall be paid and charged as an expense against the trustee Fund except for payment of such fair and reasonable amounts as determined by the Board which constitute compensation for performing bookkeeping and other administrative services, property management services and property acquisition services.
(i) The Trustees, except by reason of its their own negligencegross negligence or willful misconduct, bad faith or wilful misconduct shall not be liable for any action taken, omitted act or omission taken or suffered to be taken by it them in good faith and believed by it them to be authorized or within the discretion or discretion, rights or powers conferred upon it by this Indenture;Agreement.
(kj) so long as shall be required by Section 26(a)(2)(C) The Board is authorized to appoint an entity affiliated with a Trustee to perform the functions of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping Custodian and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock receiving and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interestpaying agent.
Appears in 1 contract
Samples: Trust Agreement (Gen Net Lease Income Fund Corporate & Govement Series)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940, as part of the Trustee's compensation the Trustee may benefit from reasonable cash balances in the Income Account and the Principal Account as provided in Section 6.04;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of monies, Securities or Units pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful misfeasance, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any Securities, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest of the Unit Holders pursuant to the terms of this Indenture, provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct misconduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated affiliated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;; and
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
Samples: Trust Indenture and Agreement (National Equity Trust Low Five Portfolio Series 31)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee Trustee, as otherwise set forthforth herein, the liabilities of the Trustee are further defined as follows:
(a) all monies moneys deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust Fund or the Reserve Account until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds or Units Certificates pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this the Indenture or otherwise, except by reason of its own wilful misfeasancewillful misconduct, bad faith or negligence gross negligence; provided, however, that the Trustee shall not in any event be liable or responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderEvaluator. The parties hereto Trustee may construe any of the provisions of in this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereofhereof by the Trustee in good faith shall be binding upon the parties hereto;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or the Evaluator, or for the form, character, genuineness, sufficiency, value or validity of any SecuritiesBonds or for or in respect of the validity or sufficiency of the Certificates or of the due execution thereof by the Depositor, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder Certificateholder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the DepositorDepositor or the Evaluator;
(d) the Trustee shall not be under no any obligation to appear in, prosecute or defend any action action, which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to of the Trustee from such action actions shall be deductible from and a charge against the Income Interest and Principal Accounts of the TrustAccounts. Subject to the foregoing, the The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Certificateholders pursuant to the terms of this Indenture, ; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income Interest and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust Fund prior to the interests of the Unit HoldersCertificateholders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, . The accounts of the Trust shall be audited not less frequently than annually by an independent public accounting firm that if the Trustee chooses to employ the Depository Trust Company is registered and in connection good standing with the storage and handling ofPublic Company Accounting Oversight Board, designated from time to time by the Depositor, and the furnishing report of administrative services in connection with the Securities, such accountants shall be furnished by the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the TrusteeCertificateholders upon request. The Trustee shall be fully protected in respect of any action under this Indenture Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust Trustee reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 6.4 hereof; provided, however, that an amount equal to any excess over $0.50 per outstanding Unit of the annual audit expense shall be paid by the Depositor so long as the Depositor maintains a secondary market;
(f) if upon the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform occurrence of any of the duties which by the terms of this Indenture are required by it to be undertaken events stated in Section 8.2(a) or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such caseSection 8.4 hereof, the Trustee may: :
(1) appoint a successor depositor meeting the qualifications set forth (having a net worth, determined in Section 8.03 accordance with generally accepted accounting principles, of at least $1,000,000) who shall act hereunder in all respects in place of the Depositor by an instrument executed by the new Depositor and the Trustee, which successor shall be satisfactory to the Trustee, and which may be compensated semi-annually, at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust Interest Account, or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C26(a) (2) (C) of the Investment Company Act of 1940, or any successor provision, or
(2) if no depositor or successor depositor has been appointed, terminate this Agreement and the trust created hereby, and liquidate the Trust Fund in the manner provided in Section 9.3;
(g) the Trustee shall notify all Certificateholders if the value of the Trust Fund as shown by any evaluation by the Trustee pursuant to Section 5.1 hereof shall be less than $2,000,000 or less than 20% of the value of the Trust Fund as of the Date of Deposit and, after such notice is given, this Indenture and the trust created hereby may be terminated and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurredFund liquidated, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.039.3, (i) by the consent of 66 2/3% of the Units at the time outstanding under this Indenture or (ii) by the Trustee, in its discretion, provided, however, upon written notification to the Certificateholders of their opportunity to object to such termination and to the Depositor, at least 33 1/3% of the Units at the time outstanding under this Indenture do not instruct the Trustee not to terminate the trust and liquidate the Trust Fund;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities Bonds or upon the dividends interest thereon or upon it as Trustee hereunder or upon or in respect of the Trust Fund which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel and audit fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income Interest and Principal Accounts of the TrustTrust Fund, except as otherwise provided in Section 6.1(e) and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust Fund prior to the interests of the Unit Holders. The Depositor shall, upon request by Certificateholders; (i) the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own gross negligence, bad faith or wilful misconduct willful misconduct, shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and or believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee, except by reason of its own gross negligence, bad faith or willful misconduct, shall not be liable for any action taken, omitted or suffered to be taken by it or believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the Trustee is authorized and empowered to execute and file on behalf of the Trust Fund any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various states in order to permit the sale of Units of the Trust Fund in such states by the Depositor; and
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Actthe Investment Company Act of 1940) for the Trust or to any affili- ated affiliated person (as so defineddefined in the Investment Company Act of 1940) or agent of the a Depositor or such underwriter shall be allowed the Trustee as an expense by the Trustee except for payment not in excess of such reasonable amounts as the Securities and Exchange Commission may prescribe as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) Trustee. Notwithstanding any provision of this Agreement to the contrary, the Trustee in its individual or any other capacity may become an owner or pledgee ofis authorized and empowered, or be an underwriter or dealer in respect of, common stock and other securities issued by subject to the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account approval of the Depositor and its counsel, to enter into a servicing arrangement or arrangements as it deems necessary or appropriate for the performance by a service organization (which may be a corporation under common ownership with the Trustee) of bookkeeping, accounting, reporting, distribution and other activities and duties allocated to it under this Agreement. The Trustee may otherwise deal with is further authorized and empowered, subject to the approval of the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect its counsel, to the security interestamend, supplement or terminate any such servicing arrangement or arrangements made pursuant to this provision.
Appears in 1 contract
Samples: Trust Indenture (Empire State Municipal Exempt Trust Guaranteed Series 182)
General Definition of Trustee’s Liabilities, Rights and Duties. The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interests of the Certificateholders thereof pursuant to the terms of this Indenture; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Interest and Principal Accounts of the Trust Fund concerned, and the payment of such costs and expenses shall be secured by a prior lien on the Trust Fund. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee Trustee, as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies All moneys deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust Fund or Reserve Account until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;.
(b) the The Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds or Units Certificates pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this the Indenture or otherwise, except by reason of its own wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder; provided, however, that the Trustee shall not in any event be liable or responsible for any evaluation made by the Evaluator. The parties hereto Trustee may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;by the Trustee in good faith shall be binding upon the parties hereto.
(c) the The Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or the Evaluator, or for the form, character, genuineness, sufficiency, value or validity of any SecuritiesBonds or for or in respect to the validity or sufficiency of the Certificates or of the due execution thereof by the Depositor, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder Certificateholder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;Depositor or the Evaluator.
(d) the The Trustee shall not be under no any obligation to appear in, prosecute or defend any action action, which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, Trustee it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to of the Trustee from such action shall be deductible from and a charge against the Income Interest and Principal Accounts of the TrustTrust Fund. Subject to the foregoing, the The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust Fund and the rights and interest interests of the Unit Holders Certificateholders pursuant to the terms of this Indenture, ; provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income Interest and Principal AccountsAccounts of the Trust Fund, and the payment of such costs and expenses shall be secured by a lien on the Trust Fund prior to the interests of the Unit Holders;Certificateholders.
(e) the The Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust Trustee reimbursable from the Interest and Principal Accounts of the Trust Fund as set forth in Section 6.04 hereof;.
(f) if the If at any time there is only one Depositor shall resign pursuant to Section 8.04 hereof or acting hereunder and such Depositor shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the such Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Depositor or of its property of the Depositor shall be appointed appointed, or any public officer shall take charge or control of the Depositor or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, case the Trustee may: :
(1i) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor Depositor, which successor shall be satisfactory to the Trustee, and which may be compensated annually, at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Interest Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust Fund, but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or any successor provision; or
(2ii) terminate this Indenture and the trust created hereby and liquidate the Trust Fund in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;9.02.
(g) if If (i) the value principal amount of Bonds held in the Trust Trust, as shown by any Trust Evaluation evaluation by the Trustee pursuant to Section 5.01 hereof, shall be less than 20% of the principal amount of Bonds deposited in the Trust or (ii) by reason of the aggregate redemption by the Depositor, and/or one or more Underwriters, of Units not theretofore sold constituting more than 60% of the number of Units initially authorized, the net worth of the Trust Fund is reduced to less than 40% of the value aggregate principal amount of the Securities Bonds deposited in the Trust determined as of the date on which the most recent deposit of Securities occurredTrust, the Trustee may in its discretion, and shall if when so directed by the Depositor, terminate this Indenture and the trust Trust created hereby hereby, only insofar as they relate to the Trust Fund, and liquidate the Trust Fund, all in the manner provided in Section 9.03;9.02.
(h) the The Trustee is authorized and empowered, at the request and direction of the Depositor, empowered to execute and file on behalf of the Trust Fund any and all documents, documents in connection with consents to service of process, required to be filed under the securities laws of the various States states in order to permit the sale of Units of the Trust Fund in such States states by the Depositor;.
(i) in In no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities Bonds or upon the dividends interest thereon or upon it as Trustee hereunder or upon or in respect of the Trust Fund which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income Interest and Principal Accounts of the TrustTrust Fund, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust Fund prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal AccountCertificateholders.
(j) the trustee The Trustee, except by reason of its own gross negligence, bad lack of good faith or wilful misconduct willful misconduct, shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
Samples: Trust Indenture and Agreement (Voyageur Unit Investment Trust Series 1)
General Definition of Trustee’s Liabilities, Rights and Duties. The Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect each Trust and the rights and interests of the Unitholders pursuant to the terms of this Indenture, PROVIDED, HOWEVER, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Interest and Principal Accounts of such Trust and the payment of such costs and expenses shall be secured by a prior lien on such Trust. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forthforth herein, the liabilities of the Trustee are further defined as follows:
(a) all monies All moneys deposited with or received by the Trustee hereunder related to a Trust shall be held by it without interest in trust as part of such Trust or the Reserve Account of such Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies moneys will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies moneys in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;.
(b) the The Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of moniesmoneys, Securities Bonds, Certificates or Units Book Entry Positions pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful misfeasancenegligence, bad lack of good faith or negligence willful misconduct, provided that the Trustee shall not in any event be liable or responsible for any evaluation made by the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunderDepositor. The parties hereto Trustee may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders hereof, and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any Securities, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest of the Unit Holders pursuant to the terms of this Indenture, provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for good faith shall be binding upon the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interestparties hereto.
Appears in 1 contract
Samples: Standard Terms and Conditions of Trust (Nuveen Unit Trusts Series 1)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle han- dle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, ; or for the disposition of monies, Securities or Units pursuant to this Indenture, ; or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture Indenture; or otherwise, except by reason of its own wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor Depositor, or for the form, character, genuineness, sufficiency, value or validity of any Securities, or for or in respect of the validity or sufficiency of the Certificates or the due execution thereof by the Depositor, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action actions shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake under- take such action as it may deem necessary at any and all times to protect the Trust and the rights and interest interests of the Unit Holders pursuant to the terms of this Indenture, providedPROVIDED, howeverHOWEVER, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; providedPROVIDED, howeverHOWEVER, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct misconduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants Accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.Section
Appears in 1 contract
Samples: Trust Indenture and Agreement (Morgan Stanley Dean Wit Sel Equity Tr 10 Industrial 2000-2)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of monies, Securities or Units pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful willful misfeasance, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto Trustee may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof hereof, which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor Depositor, or for the form, character, genuineness, sufficiency, value or validity of any Securities, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action actions shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest interests of the Unit Holders pursuant to the terms of this Indenture, provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with with, the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct misconduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture Agreement taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable reimburseable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C26(a)(2)(c) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust9.04;
(g1) if If the value of the Trust as shown by any Trust Evaluation shall be less than 40% the liquidation amount specified in clause (2) of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurredthis subsection (g), the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;9.04.
(2) The liquidation amount referred to in clause (1) of this subsection (g) shall be 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred.
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. ; The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee Trustee except by reason of its own negligence, bad faith or wilful willful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;; and
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated affiliated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as the Securities and Exchange Commission may prescribe as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
Samples: Trust Indenture (National Equity Trust Forbes Semiconductor Index Trust)
General Definition of Trustee’s Liabilities, Rights and Duties. In addition to and notwithstanding the other duties, rights, privileges and liabilities of the Trustee as otherwise set forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee hereunder shall be held by it without interest in trust as part of the Trust until required to be disbursed in accordance with the provisions of this Indenture and such monies will be segregated by separate recordation on the trust ledger of the Trustee so long as such practice preserves a valid preference under applicable law, or if such preference is not so preserved the Trustee shall handle such monies in such other manner as shall constitute the segregation and holding thereof in trust within the meaning of the Investment Company Act of 1940;
(b) the Trustee shall be under no liability for any action taken in good faith on any appraisal, paper, order, list, demand, request, consent, affidavit, notice, opinion, direction, evaluation, endorsement, assignment, resolution, draft or other document whether or not of the same kind prima facie properly executed, or for the disposition of monies, Securities or Units pursuant to this Indenture, or in respect of any evaluation which it is required to make or is required or permitted to have made by others under this Indenture or otherwise, except by reason of its own wilful misfeasance, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties hereunder. The parties hereto may construe any of the provisions of this Indenture, insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof which construction shall be binding upon the Unit Holders and the parties hereto. The Trustee shall be under no liability for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of the recitals herein, the validity or sufficiency of this Indenture or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any Securities, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Unit Holder or the Depositor other than as expressly provided for herein. The Trustee shall not be responsible for or in respect of the validity of any signatures by or on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in, prosecute or defend any action which in its opinion may involve it in expense or liability, unless as often as required by the Trustee, it shall be furnished with reasonable security and indemnity against such expense or liability, and any pecuniary cost to the Trustee from such action shall be deductible from and a charge against the Income and Principal Accounts of the Trust. Subject to the foregoing, the Trustee shall in its discretion undertake such action as it may deem necessary at any and all times to protect the Trust and the rights and interest of the Unit Holders pursuant to the terms of this Indenture, provided, however, that the expenses and costs of such actions, undertakings or proceedings shall be reimbursable to the Trustee from the Income and Principal Accounts, and the payment of such costs and expenses shall be secured by a lien on the Trust prior to the interests of the Unit Holders;
(e) the Trustee may employ agents, attorneys, accountants and auditors and shall not be answerable for the default or misconduct of any such agents, attorneys, accountants or auditors if such agents, attorneys, accountants or auditors shall have been selected with reasonable care; provided, however, that if the Trustee chooses to employ the Depository Trust Company in connection with the storage and handling of, and the furnishing of administrative services in connection with the Securities, the Trustee will be answerable for any default or misconduct of the Depository Trust Company and its employees and agents as fully and to the same extent as if such default or mis- conduct misconduct had been committed or occasioned by the Trustee. The Trustee shall be fully protected in respect of any action under this Indenture taken, or suffered, in good faith by the Trustee, in accordance with the opinion of its counsel. The accounts of the Trust shall be audited not less frequently than annually by independent certified public accountants designated from time to time by the Depositor, and the reports of such accountants shall be furnished by the Trustee to Unit Holders upon request. The fees and expenses charged by such agents, attorneys, accountants or auditors shall constitute an expense of the Trust reimbursable from the Interest and Principal Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04 hereof or shall fail to undertake or perform any of the duties which by the terms of this Indenture are required by it to be undertaken or performed or if the Depositor shall be dissolved or become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the property of the Depositor shall be appointed or any public officer shall take charge or control of the Depositor or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then in any such case, the Trustee may: (1) appoint a successor depositor meeting the qualifications set forth in Section 8.03 who shall act hereunder in all respects in place of the Depositor which successor shall be satisfactory to the Trustee, and which may be compensated at rates deemed by the Trustee to be reasonable under the circumstances, by deduction from the Income Account of the Trust or, to the extent funds are not available in such Account, from the Principal Account of the Trust but no such deduction shall be made exceeding such reasonable amount as the Securities and Exchange Commission may prescribe in accordance with Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate this Indenture and the trust created hereby and liquidate the Trust in the manner provided in Section 9.03 or (3) act as Depositor itself without terminating the Trust;
(g) if the value of the Trust as shown by any Trust Evaluation shall be less than 40% of the value of the Securities in the Trust determined as of the date on which the most recent deposit of Securities occurred, the Trustee may in its discretion, and shall if so directed by the Depositor, terminate this Indenture and the trust created hereby and liquidate the Trust all in the manner provided in Section 9.03;
(h) the Trustee is authorized and empowered, at the request and direction of the Depositor, to execute and file on behalf of the Trust any and all documents, in connection with consents to service of process, required to be filed under the securities laws of the various States in order to permit the sale of Units of the Trust in such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or other governmental charges imposed upon or in respect of the Securities or upon the dividends thereon or upon it as Trustee hereunder or upon or in respect of the Trust which it may be required to pay under any present or future law of the United States of America or of any other taxing authority having jurisdiction in the premises. For all such taxes and charges and for any expenses, including counsel fees, which the Trustee may sustain or incur with respect to such taxes or charges, the Trustee shall be reimbursed and indemnified out of the Reserve Account and/or the Income and Principal Accounts of the Trust, and the payment of such amounts so paid by the Trustee shall be secured by a lien on the Trust prior to the interests of the Unit Holders. The Depositor shall, upon request by the Trustee, provide the Trustee with a current list of Securities designated to be sold for the purpose of payment of expenses hereunder, provided that if the Depositor shall for any reason fail to provide such a list, the Trustee, in its sole discretion, may designate a current list of Securities for such purposes. The net proceeds of any such sales of Securities from such list representing principal shall be credited to the Principal Account.
(j) the trustee except by reason of its own negligence, bad faith or wilful misconduct shall not be liable for any action taken, omitted or suffered to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the Investment Company Act of 1940, no payment to the Depositor or to any principal underwriter (as defined in such Act) for the Trust or to any affili- ated affiliated person (as so defined) or agent of the Depositor or such underwriter shall be allowed the Trustee as an expense except for payment not in excess of such reasonable amounts as compensation for performing bookkeeping and other administrative services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may become an owner or pledgee of, or be an underwriter or dealer in respect of, common stock and other securities issued by the same issuer (or an affiliate of such issuer) of any of the Securities at any time held as part of the Trust and may deal with such common stock or other securities in any manner with the same rights and powers as if it were not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for the purchase of Securities or Contract Securities issued by the Trustee in its individual capacity for the account of the Depositor and the Trustee may otherwise deal with the Depositor and the Trust with the same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the Securities in connection with the Purchase Rights and Additional Purchase Rights provided however that the Unit Holders will have the benefits of the Securities and will be prior in right with respect to the security interest.
Appears in 1 contract
Samples: Trust Indenture and Agreement (National Equity Tr Short Term Low 5 Cover Write Opt Tr Ser 1)
