Powers and Duties of Trustee. The Trustee shall not copy or show this agreement to any individual or entity other than the beneficiaries or successor trustees, nor shall the Trustee reveal the identity of the beneficiaries or the trust property to any individual or entity except by way of a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee shall not record this agreement or the name of any of the beneficiaries in any place of public record. The Trustee, as the sole owner of record of the Trust Property, have the following powers with respect the Trust Property, at the written direction of the Beneficiary: a. To issue notes or bonds and to secure the payment of the same by executing a security instrument conveying a lien on the whole or any part of the Trust Property; b. To borrow money, giving notes therefor, or to assume existing debts related to the property signed by him or her in the capacity as Trustee; c. To have, at the direction of the beneficiaries, the exclusive management and control of the property as if he were the absolute owner thereof, and the full power to do all things and perform all acts which in his or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein; d. To rent or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining; e. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to: f. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiaries. g. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed as a "trust" as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
Appears in 1 contract
Samples: Personal Property Trust Agreement
Powers and Duties of Trustee. The (a) Notwithstanding anything to the contrary in this Agreement or the Account Control Agreement, the Trustee shall not copy be required to exercise any rights or show remedies under this Agreement or the Account Control Agreement or give any consent under this Agreement or the Account Control Agreement or enter into any agreement amending, modifying, supplementing or waiving any provision of this Agreement or the Account Control Agreement, or otherwise take any action, or refrain from taking any action, which involves the exercise of discretion, unless it shall have been directed to do so in writing by the Trustor or, subsequent to an Event of Default or Act of Insolvency, the applicable Lender(s) (which written direction the Trustee shall be deemed to have received upon an Act of Insolvency pursuant to Section 5.3(b)). So long as the Trustee has requested Instructions from the Trustor or the Lenders, as the case may be, in a timely manner, the Trustee shall not be liable for any individual delay in acting that is attributable to a delay or entity failure by the Trustor or the Lenders in providing such Instructions to the Trustee, and the Trustee shall be fully protected in, and shall incur no liability in connection with, acting (or failing to act) pursuant to such Instructions.
(b) Concurrently herewith, the Lenders hereby direct the Trustee, and the Trustee is hereby authorized, to enter into the Account Control Agreement and any other than related agreements in the beneficiaries form delivered to, and agreed upon by, the Trustee. For the avoidance of doubt, all of the Trustee’s rights, protections and immunities provided herein shall apply to the Trustee for any actions taken or successor trusteesomitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
(c) The Trustee undertakes to perform only such duties as are specifically set forth in this Agreement, nor and no implied duties, obligations, or covenants shall be read into this Agreement against the Trustee.
(d) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own gross negligence or willful misconduct, except that:
(i) the Trustee is acting solely as a directed trustee hereunder and shall not have any fiduciary relationship with any Person, including any Lender, and no implied duties or obligations shall be read into this Agreement or the Account Control Agreement or otherwise exist against the Trustee;
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a good faith duty to examine the same to determine whether or not they conform to the requirements of this Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(iii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts upon which such judgment was made; and
(iv) no provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Agreement or if the Trustee shall have reasonable grounds for believing that an indemnity, satisfactory to the Trustee, against such risk or liability is not reasonably assured to it under the terms of this Agreement.
(e) In no event shall the Trustee reveal be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the identity Trustee has been advised of the beneficiaries likelihood of such loss or damage and regardless of the form of action.
(f) The Trustee may refuse to act on any notice, consent, direction or Instruction from the Trustor or the trust property Lenders or any agent, trustee or similar representative thereof that, in the Trustee’s reasonable opinion, (i) is contrary to law or the provisions hereof, the Account Control Agreement, or of any individual or entity except by way of other document to which it is a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee party in connection with the transactions contemplated hereby, (ii) may expose the Trustee to liability (unless the Trustee shall have been indemnified, to its reasonable satisfaction, for such liability), provided that such refusal to act shall not record this agreement be unreasonable.
(g) In no event shall the Trustee be responsible or the name of liable for any of the beneficiaries in any place of public record. The Trustee, as the sole owner of record of the Trust Property, have the following powers with respect the Trust Property, at the written direction of the Beneficiary:
a. To issue notes failure or bonds and to secure the payment of the same by executing a security instrument conveying a lien on the whole or any part of the Trust Property;
b. To borrow money, giving notes therefor, or to assume existing debts related to the property signed by him or her delay in the capacity as Trustee;
c. To haveperformance of its obligations under this Agreement arising out of or caused by, at the direction directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of the beneficiarieswar or terrorism, the exclusive management civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics, pandemics and control interruptions, loss or malfunctions of the property as if he were the absolute owner thereofutilities, and the full power to do all things and perform all acts which in his communications or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. To rent computer (software or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
e. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiarieshardware) services.
g. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed as a "trust" as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
Appears in 1 contract
Samples: Master Securities Lending Agreement
Powers and Duties of Trustee. The Trustee, as the sole owner of record of the Trust Property, has the following power with regard to the Trust Property: To make, execute, acknowledge, and deliver all deeds, releases, mortgages, leases, contracts, options, agreements, instruments, and other obligations of whatsoever nature relating to the Trust Property, and generally to have full power to do all things and perform all acts necessary to make the instruments proper and legal, as directed to do so by the Beneficiaries. To collect notes, rents, obligations, dividends, and all other payments that may be due and payable to the Trust and to deposit the net proceeds thereof, paying net proceeds therefrom to the Beneficiaries. The Trustee shall not copy or show this agreement to any individual or entity other than the beneficiaries Beneficiaries or successor trusteesTrustees, nor shall the Trustee reveal the identity of the beneficiaries Beneficiaries or the trust property to any individual or entity except by way of a bona fide Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdictionOrder. The trustee Trustee shall not record this agreement or the name of any of the beneficiaries Beneficiaries in any place of public record. The Trustee is not an agent or partner of, and shall have no power to bind the Beneficiaries personally and, in every written contract he many enter into; reference shall be made to this declaration. The Trustee may at any time resign with written notice of such intention to each of the then Beneficiaries at his latest address appearing in the records of the Trustee. Such resignation shall become effective twenty days after such mailing. On such resignation a successor may be appointed in writing by the persons then entitled to direct the Trustee in the disposition of the property, and the Trustee shall thereupon convey or transfer the property to such successor. If no successor is named as above provided within twenty days after the mailing of such notices by the Trustee, the Trustee may convey or transfer the trust property to the Beneficiaries in accordance with their interests hereunder, and the conveyance may be recorded or registered, as the case may be, by the Trustee and such recording or registration shall constitute delivery of the conveyance or transfer to the Beneficiaries. The Trustee shall not be required to assume any personal obligation or liability in dealing with the property or to make itself liable for any damages, costs, expenses, fines or penalties, or to deal with title to the property so long as any money is due to it hereunder. The Trustee shall not be obligated to pay any money for this trust or the property or to prosecute or defend any legal proceeding involving this trust or the property unless it shall elect to do so and be furnished with sufficient funds or be indemnified to its satisfaction. If the Trustee is served with process or notice of legal proceedings or of any other matter concerning the trust or the property, the sole owner duty of record the Trustee shall be to forward the process or notice to the person named herein as the person to whom inquiries or notices shall be sent, or, in the absence of such designation, to the Beneficiaries. The latest address appearing in the records of the Trustee shall be used for all mailings. The Trustee shall have no right or duty in respect to the payment of taxes or assessments or insurance, litigation or other matters relating to the property, except on written direction accepted by it as above provided and after the payment to it of all money necessary in its opinion to carry out the directions without liability to it. The Beneficiaries are not the agents of the Trustee for any purpose and do not have any authority to contract or to execute leases or do any other act for or in the name of the Trustee or to obligate the Trustee personally or as Trustee. Upon the death, termination, resignation or physical or mental incapacity of the Trustee, the following individual(s) shall immediately be appointed as successor Trustee, with the full powers and duties of the former Trustee: , whose address is ______or, if said individual is not then living or is unable or unwilling to act as Trustee, then , whose address is ___, In the event none of said individuals are then living or are unable or unwilling to act as Trustee, then if a new trustee is not appointed within Thirty (30) days after notice the resignation of the existing trustee is received by the Beneficiaries, this agreement shall terminate, and title shall be conveyed to the beneficiaries as their interests may appear. The trustee shall receive for its services in accepting this trust and taking title hereunder the sum of $_________________________. The Trustee shall not be required to enter into any individual contract; nor to make itself individually liable to pay or incur the payment of any damages, attonrey’s fees, fines, penalties, forfeitures, costs, charges or other sums of money. The Trustee shall have no individual liability or obligation whatsoever arising from its ownership, as Trustee, of the legal title to the Trust Property, have . If the following powers with respect the Trust Property, at the written direction Trustee shall pay or incur any liability to pay any money on account of the Beneficiary:
a. To issue notes or bonds and to secure the payment of the same by executing a security instrument conveying a lien on the whole or any part of the Trust Property;
b. To borrow money, giving notes thereforthis Trust, or incur any liability to assume existing debts related pay any money on account of being made a party to the property signed by him or her in the capacity any litigation as Trustee;
c. To have, at the direction a result of the beneficiaries, the exclusive management and control of the property as if he were the absolute owner thereof, and the full power to do all things and perform all acts which in his or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. To rent or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
e. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating holding title to the Trust Property or otherwise in any court of law connection with this Trust the Beneficiaries, jointly and severally, agree that on demand they will pay to the Trustee all such payments made or equityliabilities incurred by the Trustee, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suitstogether with its expenses, including reasonable attorneys' fees, and to submit that they will indemnify and hold the same to arbitration when, in their judgment, such course is necessary Trustee harmless of and from any and all payments made or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required liabilities incurred by the Beneficiaries.
g. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed it for any reason whatsoever as a "trust" as defined in Section 301.7701-4(a) result of the Procedure and Administration Regulations of the Internal Revenue Codethis Agreement.
Appears in 1 contract
Samples: Trust Agreement
Powers and Duties of Trustee. The (a) Notwithstanding anything to the contrary in this Agreement or the Account Control Agreement, the Trustee shall not copy be required to exercise any rights or show remedies under this Agreement or the Account Control Agreement or give any consent under this Agreement or the Account Control Agreement or enter into any agreement amending, modifying, supplementing or waiving any provision of this Agreement or the Account Control Agreement, or otherwise take any action, or refrain from taking any action, which involves the exercise of discretion, unless it shall have been directed to do so in writing by the Trustor or, subsequent to an Event of Default or Act of Insolvency, the applicable Lender(s) (which written direction the Trustee shall be deemed to have received upon an Act of Insolvency pursuant to Section 5.3(b)). So long as the Trustee has requested Instructions from the Trustor or the Lenders, as the case may be, in a timely manner, the Trustee shall not be liable for any individual delay in acting that is attributable to a delay or entity failure by the Trustor or the Lenders in providing such Instructions to the Trustee, and the Trustee shall be fully protected in, and shall incur no liability in connection with, acting (or failing to act) pursuant to such Instructions.
(b) Concurrently herewith, the Lenders hereby direct the Trustee, and the Trustee is hereby authorized, to enter into the Account Control Agreement and any other than related agreements in the beneficiaries form delivered to, and agreed upon by, the Trustee. For the avoidance of doubt, all of the Trustee provided herein shall apply to the Trustee for any actions taken or successor trusteesomitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
(c) The Trustee undertakes to perform only such duties as are specifically set forth in this Agreement, nor and no implied duties, obligations, or covenants shall be read into this Agreement against the Trustee.
(d) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own gross negligence or willful misconduct, except that:
(i) the Trustee is acting solely as a directed trustee hereunder and shall not have any fiduciary relationship with any Person, including any Lender, and no implied duties or obligations shall be read into this Agreement or the Account Control Agreement or otherwise exist against the Trustee ;
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a good faith duty to examine the same to determine whether or not they conform to the requirements of this Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(iii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts upon which such judgment was made; and
(iv) no provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Agreement or if the Trustee shall have reasonable grounds for believing that an indemnity, satisfactory to the Trustee, against such risk or liability is not reasonably assured to it under the terms of this Agreement.
(e) In no event shall the Trustee reveal be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the identity Trustee has been advised of the beneficiaries likelihood of such loss or damage and regardless of the form of action.
(f) The Trustee may refuse to act on any notice, consent, direction or Instruction from the Trustor or the trust property Lenders or any agent, trustee or similar representative thereof that, in the Trustee reasonable opinion, (i) is contrary to law or the provisions hereof, the Account Control Agreement, or of any individual or entity except by way of other document to which it is a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee party in connection with the transactions contemplated hereby, (ii) may expose the Trustee to liability (unless the Trustee shall have been indemnified, to its reasonable satisfaction, for such liability), provided that such refusal to act shall not record this agreement be unreasonable.
(g) In no event shall the Trustee be responsible or the name of liable for any of the beneficiaries in any place of public record. The Trustee, as the sole owner of record of the Trust Property, have the following powers with respect the Trust Property, at the written direction of the Beneficiary:
a. To issue notes failure or bonds and to secure the payment of the same by executing a security instrument conveying a lien on the whole or any part of the Trust Property;
b. To borrow money, giving notes therefor, or to assume existing debts related to the property signed by him or her delay in the capacity as Trustee;
c. To haveperformance of its obligations under this Agreement arising out of or caused by, at the direction directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of the beneficiarieswar or terrorism, the exclusive management civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics, pandemics and control interruptions, loss or malfunctions of the property as if he were the absolute owner thereofutilities, and the full power to do all things and perform all acts which in his communications or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. To rent computer (software or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
e. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiarieshardware) services.
g. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed as a "trust" as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
Appears in 1 contract
Samples: Fully Paid Lending Trust Agreement
Powers and Duties of Trustee. The Trustee shall not copy or show this agreement to any individual or entity other than the beneficiaries or successor trustees, nor shall the Trustee reveal the identity of the beneficiaries or the trust property to any individual or entity except by way of a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee shall not record this agreement or the name of any of the beneficiaries in any place of public record. The Trustee, as the sole owner of record of the Trust Property, have the following powers with respect the Trust Property, at to the written direction of the Beneficiary:
a. To issue notes or bonds and to secure the payment of the same by executing a deed of trust, mortgage or other security instrument conveying a lien on the whole or any part of the Trust Property;
b. To borrow money, giving notes therefortherefore, or to assume existing debts related to the property signed by him or her in the capacity as Trustee;
c. To invest such part of the capital and profits therefore and the proceeds of the sale of bonds and notes in such real estate, equities in real estate, and mortgages in real estate in the United States of America;
d. To have, together with, and at the direction of the beneficiaries, the exclusive management and control of the property as if he were the absolute owner thereof, and the full power to do all things and perform all acts which in his or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. e. To take possession of the trust property in the event it becomes vacant;
f. To purchase any additional real property for the Trust at such times and on such terms as may be beneficial to the beneficiary;
g. To rent or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
e. h. To repair, alter, tear down, add to, or erect any building or buildings upon land belonging to the Trust; to fill, grade, drain, improve, and otherwise develop any land belonging to the Trust; to carry on, operate, or manage any building, apartment house, mobile home lot or hotel belonging to the Trust;
i. To make, execute, acknowledge, and deliver all deeds, releases, mortgages, leases, contracts, options, agreements, instruments, and other obligations of whatsoever nature relating to the Trust Property, and generally to have full power to do all things and perform all acts necessary to make the instruments proper and legal (and to do so by a duly appointed attorney-in-fact);
j. To collect notes, rents, obligations, dividends, and all other payments that may be due and payable to the Trust; to deposit the net proceeds thereof, as well as any other moneys from whatsoever source they may be derived, in any suitable bank or depository, and to draw the same from time to time for the purposes herein provided, paying the net proceeds therefore to the beneficiaries;
k. To pay all lawful taxes and assessments and the necessary expenses of the Trust; to employ such officers, brokers, property managers, engineers, architects, carpenters, contractors, agents, counsel, and such other persons as may seem expedient, to designate their duties and fix their compensation; to fix a reasonable compensation for their own services to the Trust, as organizers thereof.
l. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or of equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. n. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiaries.
g. o. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed as a "“trust" ” as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
Appears in 1 contract
Samples: Land Trust Agreement
Powers and Duties of Trustee. The Trustee shall not copy or show this agreement to any individual or entity other than the beneficiaries or successor trustees, nor shall the Trustee reveal the identity of the beneficiaries or the trust property to any individual or entity except by way of a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee shall not record this agreement or the name of any of the beneficiaries Beneficiaries in any place of public record. The Trustee, as divulge copies of this Trust Agreement to individual or entity other than the sole owner of record Beneficiaries or Successor Trustees specified within this agreement, or reveal the identity of the Trust Property, have the following powers with respect the Trust Property, at the written direction Beneficiaries unless ordered by Court Order as a matter of the Beneficiary:law.
a. To issue A) Issue notes or bonds and to secure the payment of the same by executing a security instrument conveying a lien on mortgaging the whole or any part of the Trust Property;
b. To ; to borrow money, giving notes therefor, or to assume existing debts related to the property therefore signed by him or her in the his capacity as Trustee;
c. To have, at the direction ; to invest such part of the beneficiariescapital and the profits therefrom and the proceeds of the sale of bonds and notes in such real estate, equities in real estate, and mortgages in real estate in the United States of America, as he may deem advisable.
B) With the consent of the Beneficiary, the Trustee shall have the authority to hold the legal title to all of the Trust Property, and shall have the exclusive management and control of the property as if he were the absolute owner thereof, and the Trustee is hereby given full power to do all things and perform all acts which in his or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions herein set forth herein;forth.
d. C) Without prejudice to the general powers conferred on the Trustee hereunder, it is hereby declared that the Trustee shall have the following powers, with the consent of the Beneficiaries:
1) To purchase any real property for the Trust at such times and on such terms as may seem advisable; to assume mortgages upon the property.
2) To sell at public auction or private sale, to barter, to exchange, or to dispose of otherwise, any part, or the whole of the Trust Property which may, from time to time form part of the Trust estate, subject to such restrictions and for such consideration for cash and for credit, and generally upon such terms and conditions as may seem judicious, to secure payment upon any loan or loans of the Trust, by mortgage with or without power of sale, and to include such provisions, terms, and conditions as may seem desirable.
3) To rent or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then the remaining;.
e. 4) To repair, alter, tear down, add to, or erect any building or buildings upon land belonging to the Trust; to fill, grade, drain, improve, and otherwise develop any land belonging to the Trust; to carry on, operate, or manage any building, apartment house, or hotel belonging to the Trust.
5) To make, execute, acknowledge, and deliver all deeds, releases, mortgages, leases, contracts, agreements, instruments, and other obligations of whatsoever nature relating to the Trust Property, and generally to have full power to do all things and perform all acts necessary to make the instruments proper and legal.
6) To collect notes, obligations, dividends, and all other payments that may be due and payable to the Trust; to deposit the proceeds thereof, as well as any other moneys from whatsoever source they may be derived, in any suitable bank or depository, and to draw the same from time to time for the purposes herein provided.
7) To pay all lawful taxes and assessments and the necessary expenses of the Trust; to employ such officers, brokers, engineers, architects, carpenters, contractors, agents, counsel, and such other persons as may seem expedient, to designate their duties and fix their compensation; to fix a reasonable compensation for their own services to the Trust, as organizers thereof.
8) To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or of equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their his judgment, such course is necessary or proper. Trustee .
9) To arrange and pay for and keep in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. To keep a careful and complete record of all the beneficial interests force in the Trust Property with the name and residence for the benefit of the person or persons owning Trustee, such beneficial interestinsurance as the Trustee may deem advisable, in such companies, in such amounts, and against such other items risks as they may deem of importance or as may be required determined necessary by the BeneficiariesTrustee.
g. 10) To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property Property, and to such other items as he may deem of importance or as the Beneficiaries hereunder may require.
11) To keep books of the Trust open to the inspection of the Beneficiaries. Nothing Beneficiaries at such reasonable times at the main office of the Trust as they may appoint.
12) To furnish the Beneficiaries at special meetings at which the same shall be requested a careful, accurate, written report of his transactions as Trustee, hereunder, of the financial standing of the Trust, and of such other information concerning the affairs of the Trust as they shall request.
13) The Trustee shall have no power to bind the Beneficiaries personally and, in every written contract he may enter into, reference shall be made to this agreement declaration; and any person or corporation contracting with the Trustee, as well as any beneficiary, shall preclude look to the powers funds and authorities the Trust Property for payment under such contract, or for the payment of any debt, mortgage, judgment, or decree, or for any money that may otherwise become due or payable, whether by reason or failure of the Trustee to perform the contract, or for any other reason, and neither the Trustee nor the Beneficiaries shall be liable personally therefore.
14) To sell the Trust Property and distribute the proceeds therefrom:
a) If any property shall remain in trust under this Agreement for a trustee as defined by term which exceeds that allowed under applicable state law, code or statutethe Trustee forthwith shall sell same at public sale after a reasonable public advertisement and reasonable notice to the Beneficiaries and, unless such additional powers after deducting his reasonable fees and expenses, he shall cause this agreement to be construed as a "trust" as defined in Section 301.7701-4(a) divide the proceeds of the Procedure sale among the Beneficiaries as their interests may then appear, without any direction or consent whatsoever, or
b) To transfer, set over, convey and Administration Regulations deliver to all the then Beneficiaries of this Trust their respective undivided interests in any non-divisible assets, or
c) To transfer, set over and deliver all of the Internal Revenue Codeassets of the Trust to its Beneficiaries, in their respective proportionate shares, at any time when the assets of the Trust consist solely of cash.
Appears in 1 contract
Samples: Trust Agreement
Powers and Duties of Trustee. The (a) Notwithstanding anything to the contrary in this Agreement or the Account Control Agreement, the Trustee shall not copy be required to exercise any rights or show remedies under this Agreement or the Account Control Agreement or give any consent under this Agreement or the Account Control Agreement or enter into any agreement amending, modifying, supplementing or waiving any provision of this Agreement or the Account Control Agreement, or otherwise take any action, or refrain from taking any action, which involves the exercise of discretion, unless it shall have been directed to do so in writing by the Trustor or, subsequent to an Event of Default or Act of Insolvency, the applicable Lender(s) (which written direction the Trustee shall be deemed to have received upon an Act of Insolvency pursuant to Section 5.3(b)). So long as the Trustee has requested Instructions from the Trustor or the Lenders, as the case may be, in a timely manner, the Trustee shall not be liable for any individual delay in acting that is attributable to a delay or entity failure by the Trustor or the Lenders in providing such Instructions to the Trustee, and the Trustee shall be fully protected in, and shall incur no liability in connection with, acting (or failing to act) pursuant to such Instructions.
(b) Concurrently herewith, the Lenders hereby direct the Trustee, and the Trustee is hereby authorized, to enter into the Account Control Agreement and any other than related agreements in the beneficiaries form delivered to, and agreed upon by, the Trustee. For the avoidance of doubt, all of the Trustee provided herein shall apply to the Trustee for any actions taken or successor trusteesomitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
(c) The Trustee undertakes to perform only such duties as are specifically set forth in this Agreement, nor and no implied duties, obligations, or covenants shall be read into this Agreement against the Trustee.
(d) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own gross negligence or willful misconduct, except that:
(i) the Trustee is acting solely as a directed trustee hereunder and shall not have any fiduciary relationship with any Person, including any Lender, and no implied duties or obligations shall be read into this Agreement or the Account Control Agreement or otherwise exist against the Trustee;
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a good faith duty to examine the same to determine whether or not they conform to the requirements of this Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(iii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts upon which such judgment was made; and
(iv) no provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Agreement or if the Trustee shall have reasonable grounds for believing that an indemnity, satisfactory to the Trustee, against such risk or liability is not reasonably assured to it under the terms of this Agreement.
(e) In no event shall the Trustee reveal be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the identity Trustee has been advised of the beneficiaries likelihood of such loss or damage and regardless of the form of action.
(f) The Trustee may refuse to act on any notice, consent, direction or Instruction from the Trustor or the trust property Lenders or any agent, trustee or similar representative thereof that, in the Trustee reasonable opinion, (i) is contrary to law or the provisions hereof, the Account Control Agreement, or of any individual or entity except by way of other document to which it is a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The trustee party in connection with the transactions contemplated hereby, (ii) may expose the Trustee to liability (unless the Trustee shall have been indemnified, to its reasonable satisfaction, for such liability), provided that such refusal to act shall not record this agreement be unreasonable.
(g) In no event shall the Trustee be responsible or the name of liable for any of the beneficiaries in any place of public record. The Trustee, as the sole owner of record of the Trust Property, have the following powers with respect the Trust Property, at the written direction of the Beneficiary:
a. To issue notes failure or bonds and to secure the payment of the same by executing a security instrument conveying a lien on the whole or any part of the Trust Property;
b. To borrow money, giving notes therefor, or to assume existing debts related to the property signed by him or her delay in the capacity as Trustee;
c. To haveperformance of its obligations under this Agreement arising out of or caused by, at the direction directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of the beneficiarieswar or terrorism, the exclusive management civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics, pandemics and control interruptions, loss or malfunctions of the property as if he were the absolute owner thereofutilities, and the full power to do all things and perform all acts which in his communications or her judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiaries in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. To rent computer (software or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
e. To represent the Trust and the Beneficiaries in all suits and legal proceedings relating to the Trust Property in any court of law or equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper. Trustee in addition to the other duties herein imposed upon him or her, shall have the obligation to:
f. To keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiarieshardware) services.
g. To keep careful and accurate books showing the receipts and disbursements he or she has made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiaries. Nothing in this agreement shall preclude the powers and authorities of a trustee as defined by state law, code or statute, unless such additional powers shall cause this agreement to be construed as a "trust" as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
Appears in 1 contract
Samples: Fully Paid Lending Trust Agreement
