Powers and Duties of the Trustee. (a) In furtherance of and not in limitation of the purposes of the Trust as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities: (i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares; (ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust; (iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates; (iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default; (v) at the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"); (vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement; (vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee; (viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder; (ix) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing, as the Depositor may direct in writing; (x) to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New York; (xi) to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable law, and as instructed in writing by the Depositor, in carrying out the activities of the Trust as set out in this Section 3.5; and (xii) to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed on behalf of the Trust. (b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property. (c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders. (d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee. (e) The Trustee shall continue to serve as a trustee until either: (i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or (ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 2 contracts
Samples: Trust Agreement (MACRO Securities Depositor, LLC), Trust Agreement (MACRO Securities Depositor, LLC)
Powers and Duties of the Trustee. (a) In furtherance of and not in limitation of the purposes of the Trust as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and and, provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority Majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing, as the Depositor may direct in writing;
(x) to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New Yorkthe Commonwealth of [Massachusetts];
(xi) to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable law, and as instructed in writing by the Depositor, in carrying out the activities of the Trust as set out in this Section 3.5; and
(xii) to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereofof the Up-MACRO Tradeable Shares; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 2 contracts
Samples: Trust Agreement (MACRO Securities Depositor, LLC), Trust Agreement (MACRO Securities Depositor, LLC)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust Trustee under this agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;will include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction receipt and deposit of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders Merilus USA as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this agreement;
(b) granting proxies and distributing materials to Holders as provided in this agreement;
(c) voting the Holder Votes in accordance with the provisions of this agreement;
(d) receiving the grant of the Exchange Put Right and the Exchange Right and the Automatic Exchange Rights from Merilus USA as trustee for and on behalf of the Holders in accordance with the provisions of this agreement;
(e) exercising the Exchange Put Right and the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this agreement, and 126 in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the shares of Merilus USA Common Stock and cheques, if any, to which such Holders are entitled on the exercise of the Exchange Put Right and the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5agreement;
(h) taking action at the direction of a Holder or Holders to enforce the obligations of Merilus USA under this agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this agreement. In the exercise of such rights, powers and authorities, the Trustee will have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to effect the purpose of the Trust. Any exercise of such discretionary rights, powers and authorities by the Trustee will be final, conclusive and binding on all persons. For greater certainty, the Trustee will have only those duties as are set out specifically in this agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder will act honestly and in good faith with a view to the best interests of the Holders and will exercise the care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. The Trustee will not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it will be specifically required to do so under the terms hereof nor will the Trustee be required to take any notice of, or to do or to take any act, action necessary to cause all applicable tax returns or proceeding as a result of any default or breach of any provision hereunder, unless and tax information reports that are required until notified in writing of such default or breach, which notices will distinctly specify the default or breach desired to be filed with respect brought to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required attention of the Trustee as it and in the absence of such notice the Trustee may be directed from time to time for all purposes of this agreement conclusively assume that no default or breach has been made in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% observance or performance of any of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreementrepresentations, in which case such threshold)warranties, where appropriatecovenants, to protect the interests of the Trust and the Holdersagreements or conditions contained herein.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Golden Soil Inc), Agreement and Plan of Reorganization (Golden Soil Inc)
Powers and Duties of the Trustee. (a) In furtherance of and not in limitation of the purposes of the Trust as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the UpDown-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of UpDown-MACRO Tradeable Shares; and and, provided further, that there shall be no interests in the Trust other than the UpDown-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the UpDown-MACRO Tradeable Shares to purchase UpDown-MACRO Holding Shares from the UpDown-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority Majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing, as the Depositor may direct in writing;
(x) to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New Yorkthe [ ];
(xi) to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable law, and as instructed in writing by the Depositor, in carrying out the activities of the Trust as set out in this Section 3.5; and
(xii) to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the UpDown-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereofof the Down-MACRO Tradeable Shares; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 2 contracts
Samples: Trust Agreement (MACRO Securities Depositor, LLC), Trust Agreement (MACRO Securities Depositor, LLC)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers, duties and not in limitation authorities of the purposes Trustee under this agreement, in its capacity as Trustee of the Trust as provided for in Section 3.3(b)Trust, the Trustee shall have the power and authority to cause the Trust to engage in the following activitiesinclude:
(i) to issue receipt and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale deposit of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares Bionik US Special Voting Share from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders Bionik US as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust Beneficiaries in all matters necessary or incidental accordance with the provisions of this agreement;
(ii) granting proxies and distributing materials to Beneficiaries as provided in this agreement;
(iii) voting the Beneficiary Votes in accordance with the provisions of this agreement;
(iv) receiving the grant of the Automatic Exchange Right and the Exchange Right from Bionik US as Trustee for and on behalf of the Beneficiaries in accordance with the provisions of this agreement;
(v) enforcing the benefit of the Automatic Exchange Right and the Exchange Right, in each case in accordance with the provisions of this agreement, and in connection therewith receiving from Beneficiaries Exchangeable Shares and other requisite documents and distributing to such Beneficiaries Bionik US Shares and cheques, if any, to which such Beneficiaries are entitled pursuant to the foregoingAutomatic Exchange Right or the Exchange Right, as the Depositor case may direct in writingbe;
(xvi) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xivii) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5agreement;
(viii) taking action at the direction of a Beneficiary or Beneficiaries to enforce the obligations of Bionik US and the Corporation under this agreement; and
(xiiix) to take any action necessary to cause all applicable tax returns taking such other actions and tax information reports that doing such other things as are required specifically provided in this agreement to be filed with respect to carried out by the Trust to be duly prepared and filed on behalf of Trustee whether alone, jointly or in the Trustalternative.
(b) Legal title In the exercise of such rights, powers, duties and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers, duties and authority not in conflict with any of the provisions of this agreement as the Trustee, acting in good faith on the direction of the Beneficiaries may be required to all Trust Property shall be vested at all times exercise in order to effect the purpose of the Trust. The Trustee in exercising its rights, except where applicable law powers, duties and authorities hereunder shall act honestly and in any jurisdiction requires title good faith and with a view to any part the best interests of the assets to be vested Beneficiaries and shall exercise the care, diligence and skill that a reasonably prudent trustee would exercise in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Propertycomparable circumstances.
(c) The Trustee shall not be bound to give notice or do or take all actions and perform such duties as may be required any act, action or proceeding by virtue of the Trustee as powers conferred on it may hereby unless and until it shall be directed from time specifically required to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to do so under the terms hereof; or
(ii) nor shall the Trustee be required to take any notice of, or to do, or to take any act, action or proceeding as a Successor result of any default or breach of any provision hereunder, unless and until notified in writing of such default or breach, which notices shall distinctly specify the default or breach desired to be brought to the attention of the Trustee, and in the absence of such notice the Trustee may for all purposes of this agreement conclusively assume that no default or breach has been appointed and has accepted that appointment made in accordance with Section 5the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein.
Appears in 2 contracts
Samples: Voting and Exchange Trust Agreement, Voting and Exchange Trust Agreement (Bionik Laboratories Corp.)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust Trustee under this Agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;shall include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at purchasing the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders Orbital as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from Orbital as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the Orbital Common Shares and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5Agreement;
(h) taking action on its own initiative or at the direction of a Holder or Holders to enforce the obligations of Orbital under this Agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times in the Trustpersons. For greater certainty, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed shall have only those duties as are set out specifically in this Agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder for such purpose. None shall act honestly and in good faith with a view to the best interests of the Holders and shall have legal title to any part of exercise the Trust Propertycare, but shall have an undivided beneficial interest diligence and skill that a reasonably prudent trustee would exercise in the Trust Propertycomparable circumstances.
(c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Trust Agreement (Orbital Sciences Corp /De/)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust Trustee under this Agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;shall include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction receipt and depositing of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders Applied as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from Applied as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the Applied Common Stock and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5Agreement;
(h) taking action on its own initiative or at the direction of a Holder or Holders to enforce the obligations of Applied under this Agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights, powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times in the Trustpersons. For greater certainty, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed shall have only those duties as are set out specifically in this Agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder for such purpose. None shall act honestly and in good faith with a view to the best interests of the Holders and shall have legal title to exercise the care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. Notwithstanding any part other provision of the Trust Propertythis Agreement, but nothing in this Agreement shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required of obligate the Trustee as it may be directed from time to time in writing by the Depositorhave knowledge of, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold comply with or otherwise act in accordance with laws or regulations of a jurisdiction other than the terms Province of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust Ontario and the Holderslaws of Canada applicable therein.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Trust Agreement (Applied Cellular Technology Inc)
Powers and Duties of the Trustee. (a1) In furtherance of The rights, powers, duties and not in limitation authorities of the purposes of the Trust Trustee under this agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;shall include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction receipt and deposit of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Newmont Special Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders Newmont as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Beneficiaries in all matters necessary or incidental accordance with the provisions of this agreement;
(b) granting proxies and distributing materials to Beneficiaries as provided in this agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of this agreement;
(d) receiving the grant of the Automatic Exchange Right and the Automatic Exchange Rights on Liquidation from Newmont as Trustee for and on behalf of the Beneficiaries in accordance with the provisions of this agreement;
(e) enforcing the benefit of the Automatic Exchange Right and the Automatic Exchange Rights on Liquidation, in each case in accordance with the provisions of this agreement, and in connection therewith receiving from Beneficiaries any requisite documents and distributing to such Beneficiaries Newmont Shares and cheques, if any, to which such Beneficiaries are entitled pursuant to the foregoingAutomatic Exchange Right or the Automatic Exchange Rights on Liquidation, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5agreement;
(h) taking action at the direction of a Beneficiary or Beneficiaries to enforce the obligations of Newmont and New Exchangeco under this agreement; and
(xiii) to take any action necessary to cause all applicable tax returns taking such other actions and tax information reports that doing such other things as are required specifically provided in this agreement to be filed carried out by the Trustee whether alone, jointly or in the alternative.
(2) In the exercise of such rights, powers, duties and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with respect any of the provisions of this agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to effect the Trust to be duly prepared and filed on behalf purpose of the Trust. Any exercise of duties or of discretionary rights, powers and authorities by the Trustee shall be final, conclusive and binding upon all persons. For greater certainty, and anything else herein notwithstanding, the Trustee shall have only those duties as set out specifically in this agreement.
(b3) Legal title The Trustee in exercising its rights, powers, duties and authorities hereunder shall act honestly and in good faith and with a view to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part best interests of the assets to be vested Beneficiaries and shall exercise the care, diligence and skill that a reasonably prudent trustee would exercise in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Propertycomparable circumstances.
(c4) The Trustee shall not be bound to give notice or do or take all actions any act, action or proceeding by virtue of the powers, rights, duties or authorities conferred on it hereby unless and perform such duties as may until it shall be specifically required to do so under the terms hereof; nor shall the Trustee be required to take any notice of, or be deemed to have actual or constructive notice or knowledge of, any matter under this agreement (including any notice of the Trustee a Newmont Meeting or any prohibition against New Exchangeco redeeming any Retracted Shares or of any Insolvency Event or any Liquidation Event (collectively, a “Notice Event”)) or be required to do or to take any act, action or proceeding as it may be directed from time to time a result of any default or breach of any provision hereunder or in connection with any Notice Event, unless and until notified in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold such default or breach or Notice Event in accordance with the terms provisions of this Trust Agreement, in which case such threshold), where appropriate, notices shall distinctly specify the default or breach or Notice Event desired to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect be brought to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by attention of the Trustee, and in the Depositor absence of such notice the Trustee may for all purposes of this agreement conclusively assume that no Notice Event has occurred and no default or Holders evidencing not less than 66 and 2/3% breach has been made in the observance or performance of any of the Aggregate Par Amount at any timerepresentations, and a successor Paying Agent warranties, covenants, agreements or additional Paying Agents may be appointed at any time by the Trusteeconditions contained herein.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Trust Agreement (Newmont Mining Corp /De/)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust -------------------------------- Trustee under this Agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;shall include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at purchasing the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders Sonic as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from Sonic as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the Sonic Common Shares and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take the Trust Estate:
(g) investing any action and have any authority that may be necessary or appropriate for the preservation and the continuation moneys forming, from time to time, a part of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate as provided in this Agreement;
(xih) taking action on its own initiative or at the direction of a Holder or Holders to take any action or refrain from any action so long as such action or inaction is not in violation enforce the obligations of Sonic under this Trust Agreement or with applicable law, and as instructed in writing by the Depositor, in carrying out the activities of the Trust as set out in this Section 3.5Agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times in the Trustpersons. For greater certainty, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed shall have only those duties as are set out specifically in this Agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder for such purpose. None shall act honestly and in good faith with a view to the best interests of the Holders and shall have legal title to any part of exercise the Trust Propertycare, but shall have an undivided beneficial interest diligence and skill that a reasonably prudent trustee would exercise in the Trust Propertycomparable circumstances.
(c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Trust Agreement (Sonic Environmental Systems Inc)
Powers and Duties of the Trustee. (a) In furtherance of and not in limitation of the purposes of the Trust as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the UpDown-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of UpDown-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the UpDown-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the UpDown-MACRO Tradeable Shares to purchase UpDown-MACRO Holding Shares from the UpDown-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing, as the Depositor may direct in writing;
(x) to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of the State of New York;
(xi) to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable law, and as instructed in writing by the Depositor, in carrying out the activities of the Trust as set out in this Section 3.5; and
(xii) to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required of the Trustee as it may be directed from time to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the UpDown-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust Trustee under this Agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;shall include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at receipt and depositing the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay Voting Share from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders ACT as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from ACT as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the ACT Common Stock and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5Agreement;
(h) taking action on its own initiative or at the direction of a Holder or Holders to enforce the obligations of ACT under this Agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights, powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times in the Trustpersons. For greater certainty, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed shall have only those duties as are set out specifically in this Agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder for such purpose. None shall act honestly and in good faith with a view to the best interests of the Holders and shall have legal title to exercise the care, diligence and skill that a reasonable prudent trustee would exercise in comparable circumstances. Notwithstanding any part other provision of the Trust Propertythis Agreement, but nothing in this Agreement shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required of obligate the Trustee as it may be directed from time to time in writing by the Depositorhave knowledge of, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold comply with or otherwise act in accordance with laws or regulations of a jurisdiction other than the terms Province of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust Ontario and the HoldersCanada.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Trust Agreement (Applied Cellular Technology Inc)
Powers and Duties of the Trustee. The rights, powers and authorities of the Trustee under this agreement, in its capacity as trustee of the trust, shall include:
(a) In furtherance of receipt and not in limitation deposit of the purposes of the Trust as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares Voting Share from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders Parent as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Non-Affiliated Holders in all matters necessary or incidental to accordance with the foregoing, as the Depositor may direct in writingprovisions of this agreement;
(xb) granting proxies and distributing materials to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkNon-Affiliated Holders as provided in this agreement;
(xic) to take any action or refrain from any action so long as such action or inaction is not voting the Non-Affiliated Holder Votes in violation accordance with the provisions of this Trust Agreement or agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from the Parent as trustee for and on behalf of the Non-Affiliated Holders in accordance with applicable lawthe provisions of this agreement;
(e) exercising the Exchange Right in accordance with the provisions of this agreement, and as instructed in writing by connection therewith receiving from Non-Affiliated Holders Preferred Shares and other requisite documents and distributing to such Non-Affiliated Holders the Depositorshares of Parent Common Stock and cheques, in carrying out if any, to which such Non-Affiliated Holders are entitled upon the activities exercise of the Exchange Right;
(f) holding title to the Trust Estate;
(g) investing any money forming, from time to time, a part of the Trust Estate as set out provided in this Section 3.5agreement;
(h) taking action at the direction of a Non-Affiliated Holder to enforce the obligations of the Corporation and/or the Parent under this agreement and under the Preferred Share Provisions; and
(xiii) taking such other actions and doing such other things as are specifically provided in this agreement. In the exercise of such rights, powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times persons. For greater certainty, the Trustee shall have only those duties as are set out specifically in this agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder shall act honestly and in good faith with a view to the Trust, except where applicable law in any jurisdiction requires title to any part best interests of the assets to be vested Non-Affiliated Holders and shall exercise the care, diligence and skill that a reasonably prudent trustee would exercise in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purposecomparable circumstances. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall not be bound to give any notice or do or take all actions and perform such duties as may be required any act, action or proceeding by virtue of the Trustee as powers conferred on it may hereby unless and until it shall be directed from time specifically required to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to do so under the terms hereof; or
(ii) nor shall the Trustee be required to take any notice of, or to do or to take any act, action or proceeding as a Successor result of any default or breach of any provision hereunder, unless and until notified in writing of such default or breach, which notice shall distinctly specify the default or breach desired to be brought to the attention of the Trustee and in the absence of such notice the Trustee may for all purposes of this agreement conclusively assume that no default or breach has been appointed and has accepted that appointment made in accordance with Section 5the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein.
Appears in 1 contract
Samples: Voting, Support and Exchange Trust Agreement (Voice Mobility International Inc)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes of the Trust Trustee under this Agreement, in its capacity as provided for in Section 3.3(b), the Trustee shall have the power and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation trustee of the Trust, and to issue relevant notices to Holders as to such actions and applicable Record Dates;will include:
(iva) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction receipt and deposit of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay AOI Trust Stock from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders AOI as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders and AOI in all matters necessary accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from AOI as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement, and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the shares of AOI Common Stock and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xf) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xig) investing any moneys forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5Agreement;
(h) taking action at the direction of a Holder or Holders to enforce the obligations of AOI under this Agreement and AOI and Apple under the Support Agreement; and
(xiii) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights, powers and authorities the Trustee will have (and is granted) such incidental and additional rights, powers and authorities not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to effect the purpose of the Trust. Any exercise of such discretionary rights, powers and authorities by the Trustee will be final, conclusive and binding upon all persons. For greater certainty, the Trustee will have only those duties as are set out specifically in this Agreement. The Trustee in exercising its rights, powers, duties and authorities hereunder will act honestly and in good faith with a view to the best interests of the Holders and will exercise the care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. The Trustee will not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it is specifically required to do so under the terms hereof, nor will the Trustee be required to take any notice of, or to do or to take any act, action necessary to cause all applicable tax returns or proceeding as a result of any default or breach of any provision hereunder, unless and tax information reports that are required until notified in writing of such default or breach, which notices will distinctly specify the default or breach desired to be filed with respect brought to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in the Trust, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may be required attention of the Trustee as it and in the absence of such notice the Trustee may be directed from time to time for all purposes of this Agreement conclusively assume that no default or breach has been made in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% observance or performance of any of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreementrepresentations, in which case such threshold)warranties, where appropriatecovenants, to protect the interests of the Trust and the Holdersagreements or conditions contained herein.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms hereof; or
(ii) a Successor Trustee has been appointed and has accepted that appointment in accordance with Section 5.
Appears in 1 contract
Samples: Voting and Exchange Agreement (Apple Orthodontix Inc)
Powers and Duties of the Trustee. (a) In furtherance of The rights, powers and not in limitation authorities of the purposes Trustee under this Agreement, in its capacity as trustee of the Trust as provided for in Section 3.3(b)Trust, the Trustee shall have the power and authority to cause the Trust to engage in the following activitiesinclude:
(i) to issue receipt and sell the Up-MACRO Tradeable Shares in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one class of Up-MACRO Tradeable Shares; and provided further, that there shall be no interests in the Trust other than the Up-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale deposit of the Up-MACRO Tradeable Shares to purchase Up-MACRO Holding Shares Voting Share from the Up-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions to be taken hereunder that require a Record Date to be established, including with respect to Distributions, voting rights, exchanges and distributions in connection with any liquidation of the Trust, and to issue relevant notices to Holders Pubco as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default, upon a Responsible Officer receiving actual or written notice of such Default;
(v) at the written instruction of the Depositor or Holders evidencing not less than a majority of the Aggregate Par Amount, to bring or defend, pay from the Trust Property, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of and under the exclusive control of the Trustee on behalf of the Trust and the Holders to hold payments and distributions received in respect of the Trust Property which may not be immediately distributed and to distribute such amounts to the Holders as soon as practicable thereafter and to invest any amounts on deposit in any such accounts in accordance with the terms of this Trust Agreement;
(vii) to act as, or appoint another Person to act as, registrar and transfer agent (the "Transfer Agent") for the Trust. Any Transfer Agent may be removed by the Trustee at any time and a successor Transfer Agent or additional Transfer Agents may be appointed at any time by the Trustee;
(viii) to execute and deliver the Trust Documents, and to perform its obligations and exercise and enforce its rights thereunder;
(ix) to execute all documents or instruments, perform all duties and powers, and do all things trustee for and on behalf of the Trust Holders in all matters necessary accordance with the provisions of this Agreement;
(ii) granting proxies and distributing materials to Holders as provided in this Agreement;
(iii) voting the Holder Votes in accordance with the provisions of this Agreement;
(iv) receiving the grant of the Exchange Right and the Automatic Exchange Rights from Pubco as trustee for and on behalf of the Holders in accordance with the provisions of this Agreement;
(v) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this Agreement, and in connection therewith receiving from Holders Exchangeable Shares and other requisite documents and distributing to such Holders the shares of Pubco Common Stock and cheques, if any, to which such Holders are entitled upon the exercise of the Exchange Right or incidental pursuant to the foregoingAutomatic Exchange Rights, as the Depositor case may direct in writingbe;
(xvi) holding title to take any action and have any authority that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges under the laws of New YorkTrust Estate;
(xivii) investing any monies forming, from time to take any action or refrain from any action so long as such action or inaction is not in violation of this Trust Agreement or with applicable lawtime, and as instructed in writing by the Depositor, in carrying out the activities a part of the Trust Estate as set out provided in this Section 3.5Agreement;
(viii) taking action at the direction of a Holder or Holders to enforce the obligations of Pubco under this Agreement; and
(xiiix) taking such other actions and doing such other things as are specifically provided in this Agreement. In the exercise of such rights, powers and authorities the Trustee shall have (and is granted) such incidental and additional rights, powers and authority not in conflict with any of the provisions of this Agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to take any action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to effect the Trust to be duly prepared and filed on behalf purpose of the Trust.
(b) Legal title to all Trust Property . Any exercise of such discretionary rights, powers and authorities by the Trustee shall be vested at final, conclusive and binding upon all times in the Trustpersons. For greater certainty, except where applicable law in any jurisdiction requires title to any part of the assets to be vested in a trustee, in which case legal title shall be deemed to be vested in the Trustee appointed hereunder for such purpose. None of the Holders shall have legal title to any part of the Trust Property, but shall have an undivided beneficial interest only those duties as are set out specifically in the Trust Property.
(c) this Agreement. The Trustee shall not be bound to give any notice or do or take all actions and perform such duties as may be required any act, action or proceeding by virtue of the Trustee as powers conferred on it may hereby unless and until it shall be directed from time specifically required to time in writing by the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)), an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for actions that require a different threshold in accordance with the terms of this Trust Agreement, in which case such threshold), where appropriate, to protect the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying Agent" and, initially, the Trustee) to pay Distributions with respect to the Up-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par Amount at any time, and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to do so under the terms hereof; or
(ii) nor shall the Trustee be required to take any notice of, or to do or to take any act, action or proceeding as a Successor result of any default or breach of any provision hereunder, unless and until notified in writing of such default or breach, which notices shall distinctly specify the default or breach desired to be brought to the attention of the Trustee and in the absence of such notice the Trustee may for all purposes of this Agreement conclusively assume that no default or breach has been appointed and has accepted that appointment made in accordance with Section 5the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein.
Appears in 1 contract
Samples: Voting Trust and Exchange Agreement (E Financial Depot Com)
